text:
    Alexander Conn v. The People of the State of Illinois.

      Filed at Springfield March 27, 1886.

    1. Chimin al law — assault with intent to murder — of the intent, and proof thereof—when malice presumed. Where an act is committed deliberately, and is likely to be attended with dangerous consequences to the life of another, malice may be presumed. So if one shoots a loaded pistol or other fire-arm in the direction of another under such circumstances as to show a reckless indifference as to the consequences, and the act is likely to result in the death of the person'toward whom the shot is fired, the law will imply malice, and the party so shooting may be convicted of an assault with intent to murder.
    2. To convict one of. an assault with a loaded revolver, with intent to kill and murder, the criminal intent must be shown; but direct and’ positive testimony is not required to prove such intent. It may be presumed from facts and circumstances shown by the evidence.
    3. So if a person fires a revolver at or toward another, either with malice prepense or with a total disregard of human life, he may be convicted of an assault with intent to kill and murder the person so attacked; and in such case it makes no difference whether such person was struck by the shot or not.
    4. Same—evidence—want of materiality. On the trial of a party for an assault with intent to kill and murder, it was shown by a witness for the People, that defendant, while standing in front of witness’ residence, talking with B., her husband, called to the person assaulted as he was passing the other side of the street, and demanded that he come over and pay the $14 he owed him, and on his refusing to come over, shot at him. ’The defendant offered to prove by another witness that just before defendant started to the place where he fired the shot, he said he was going over to B.’s to collect $14 that B. owed him, which the court refused to allow': Held, that the offered evidence was not of such significance as to constitute material error in refusing to admit it.
    Writ of Error to the Circuit Court of Macon county; the Hon. James F. Hughes, Judge, presiding.
    Messrs. Walker & Walker, and Mr. W. C. Johns, for the plaintiff in error:
    As to granting new trial on the facts in a criminal case, see Mooney v. People, 111 Ill. 389; Clark v. People, id. 404.
    Defendant offered to prove by Gordon what Conn said as to his object in going over to Biggs’ house on that day, and to prove that immediately before Conn left Gordon’s house he said he was going over to Biggs’ to collect $14 that Biggs owed him. The rule that a party can not manufacture evidence in his favor, has no proper application, for the reason there was no evidence of any deliberation whatever. It also tended to explain the testimony of Mrs. Biggs as to the remark about the $14. It is worthy of notice that these declarations were made before the transactions to which they are claimed to relate. Poole v. Bridges, 4 Pick. 378; Allen v. Duncan, 11 id. 308; Hayans v. Butler, 24 id. 242.
    Declarations of a party made at the time of a transáction, and expressive of its character, motive or object, are regarded as verbal acts, tending to indicate a present purpose and intention, and are therefore admitted in proof like other material facts. But where they are merely narrative of a past occurrence, they can not be received as proof of such occurrence. They must be concomitant with and so intimately connected as to be regarded as part of the transaction. Comfort v. People, 54 Ill. 403; 1 Greenleaf on Evidence, sec. 108, and notes; Croff v. Ballenger, 18 Ill. 200; Lander v. People, 104 id. 205; Roscoe’s Dig. Crim. Evidence, 20, 21; Wharton on Crim. Evidence, sec. 263, et seq.

      The element of intention to kill is entirely omitted from each of the instructions complained of. If the sixth instruction had told the jury that the law presumed an intention to kill from the kind, of shooting described in it, and had not expressly declared that the defendant “is guilty of an assault to commit murder,” the most serious objection to it would have been removed. It was error to assume in it that Conn was guilty of the offence. Kinney v. People, 108 Ill. 525; Barr v. People, 113 id. 471.
    Mr. Edward P. Vail, State’s attorney, for the People:
    It is not denied that sometimes a declaration made at the time of a relevant act, and which characterizes it or is expressive of its purpose or intention, is admissible, with the proof of the act, as a part of the res gestes. Here the first declaration is not expressive of any act. The instructions stated the law correctly as to the offence charged. Perry v. People, 14 Ill. 496; Vandermark v. People, 47 id. 122; Dunaway v. People, 110 id. 333.
   Mr. Justice Sheldon

delivered the opinion of the Court:

At the September term, 1885, of the Macon county circuit court, Alexander Conn was convicted of an assault with a deadly weapon with intent to murder John Warnicott, and sentenced to imprisonment in the penitentiary for one year. This writ of error is brought to reverse the judgment. The errors assigned call in question the sufficiency of the evidence, the ruling of the court in rejecting one item of evidence offered by the defendant, and in giving and refusing instructions.

The transaction occurred on Sunday, October 1, 1882, in the village of Mt. Zion, in Macon county. Warnicott testified that as he was passing westerly along the south side of the principal street in the village, he saw the defendant, Conn, and one Biggs, standing on the walk in front of Biggs’ house, on the north side of the street; that as he got nearly opposite them he was hailed by Conn, who said, “Come over and pay me what you owe me;” that he answered, “If I owe you anything I will pay you to-morrow,—I don’t do business on Sunday; ” that he was walking rapidly, and did not stop; heard Conn say something else after wdtness got west of David Foster’s house,—it was “stop him,” as if he had said, “I’ll stop him, ” or something of that kind; that he heard a shot, and instantly turned around and saw Conn, still in front of Biggs’ house, facing toward witness, with a revolver in his right hand; his hand was down by his side; witness did not stop, but went right on; that he was about one hundred and sixty feet from Conn when the shot was fired; was not hurt, and did not hear a bullet; that his relations with Conn were friendly, and he did not owe him anything.

Mrs. Biggs, who saw the occurrence, testified that Conn was drunk; that when Warnicott was passing on the other side of the street, as he got opposite to Conn, the latter called to Warnicott with an oath, and said, “Come over here and pay me the $14 you owe me,” and immediately fired the revolver directly across the street, toward Warnicott; that the revolver was not elevated, but seemed to be on a level, and he steadied himself the instant he shot. David Foster, who lived on the south side of the street, testified that he saw Warnicott coming down the street; Conn said to him, “God damn you, come over and pay me what you owe me, or I will shoot you;” that Warnicott was walking rapidly, and did not stop, and Conn raised his revolver and fired toward Warnicott. The witness Boyce testified that about the time Warnicott got as far west as the west line of Foster’s lot, Conn fired his revolver in a westerly direction, and it looked to him as if it was about on a level; that Warnicott wras in a westerly direction from Conn, and the shot appeared to be fired toward Warnicott. He saw that morning the revolver Conn had; had it in his hand; it was loaded with cartridge; it was pretty near as large as a navy revolver. The witness Scott testified that he was about one hundred yards west of Warnicott, on the same side of the street; that he saw Conn fire; from where he was, it appeared to be about on a level; the smoke from the revolver went straight out; he could see the revolver; it appeared to be pointed in the direction of Warnicott. These were witnesses on the part of the People. Upon the part of the prisoner two witnesses testified—Mr. and Mrs. Gordon. Mrs. Gordon says: Saw Conn fire the revolver; it was elevated in the air when fired, and in the direction of David Foster’s house. When Conn fired, he raised the revolver from his side and swung it around in this way, (witness describing by her hand a circular motion.) She says she and her husband were the nearest to where Conn stood of any of the witnesses for the People, except Mrs. Biggs; that if Conn said anything to Warnicott, or Warnicott to him, she did not hear it. Mr. Gordon says: Conn fired in the direction of Foster’s house, and elevated in the air to such an extent that 'the ball would have gone at least forty feet above the head of a man on the walk across the street in the direction the revolver was pointed; that if Warnicott said anything, or if Conn said anything to Warnicott, except “halloo, ” it was in such a low tone of voice he did not or could not hear it. He says Conn was staggering drunk, and that the pistol was loaded with cartridge's and leaden balls; that it was a “pretty big revolver, ” a smaller size than a navy.

There was some disagreement in the statements of the witnesses, but it was peculiarly for the jury to weigh and pass upon their testimony,. after considering the means of observation of the- respective witnesses, and the circumstances in evidence going to affect their credibility. If credence was given to the testimony on the part of the People, it was quite sufficient to support the verdict. We are unable to say the verdict was not warranted by the evidence.

The excluded evidence objected to, was an offer to prove by the witness Gordon that immediately before Conn left Gordon’s house to go across the street to Biggs’ house, Conn said he was going over to Biggs’ to collect $14 that Biggs owed him. This was not a declaration which accompanied the act which was being investigated, but was made some time before,—how long before not distinctly appearing. If relevant, the offered evidence was not at all of a significant character. - Its only bearing, that we perceive, would be in tending to show Mrs. Biggs might have been mistaken in understanding the purport of Conn’s language, when she says he asked Warnicott for the payment of $14. We find no material error in the rejection of this evidence.

Three instructions given for the People are claimed to be erroneous, which were as follows:

“6. If the jury believe, from the evidence, beyond a reasonable doubt, that the defendant pointed the revolver at the said John Warnicott, as charged in the indictment, and discharged the same either with malice aforethought or with a reckless and total disregard of human life, and that the use of the said weapon, as used by the said defendant, was likely to kill the said John Warnicott, then the said defendant is guilty of an assault with intent to commit murder.
“7. To constitute the offence charged in this case, the intent alleged in the indictment is necessary to be shown, but direct and positive testimony is not necessary to prove the intent,—it may be inferred from the facts and circumstances shown by the evidence; and if you believe., from the evidence, beyond a reasonable doubt, that the shooting, as alleged in the indictment, was done deliberately, and was likely to be attended with dangerous consequences, the malice or intent requisite to make out this case as charged will be presumed.
“8. • If you believe, from the evidence, beyond a reasonable doubt, that the defendant fired the revolver either with malice prepense or with a total disregard of human life, as charged in the indictment, then the law is for the People, and it does not make any difference whether the said Warnicott was struck or not. In either event the jury must find the defendant guilty.”

It is believed these instructions state the law with substantial correctness, as it has been held by this court.. In Perry et al. v. The People, 14 Ill. 496, which was a case of assault with intent to murder, this court say: “At the instance of the prosecution the court instructed the jury that if they believed, from the evidence, that Perry fired the pistol either with malice prepense or a total disregard of human life, then the law is for the People. * * * Where the act is committed deliberately, and is likely to be attended with dangerous consequences, the malice requisite to murder will be presumed. These instructions are broad and general, and predicated upon that principle of law which attributes universal malice to reckless acts of homicide, where no particular motive can be traced. The principle is one well established in the law, and we can not say that it is improperly laid down in the instructions. ” To the same effect, see Dunaway v. The People, 110 Ill. 333.

This would seem explicitly to cover and justify the sixth instruction, and the others would follow as consequences from what is asserted in that instruction. It is not a just criticism that the element of intention to kill is omitted from the instructions. The seventh expressly says the intent alleged in the indictment is necessary to be shown, and the others contain the requisite of the proof of facts and circumstances from which the alleged intent might be presumed.

It is said the seventh instruction assumes there was a shooting “as alleged in the indictment. ” We do not so read that instruction. Nor do we find that either instruction, as is supposed, admits of a conviction on proof simply of deliberately firing the revolver, but it is made a requisite that the shooting should have been “as charged in the indictment, ”—that is, toward Warnicott, and that it should have been done with malice prepense, or with a total disregard of human life, or that it was likely to be attended with dangerous consequences.

The defendant asked the court to give eighteen instructions to the jury. Six of them were given, and the others refused. Of the ones given, the first required proof of every material allegation of the indictment, and that if there was a reasonable doubt of any one of the elements necessary to constitute the crime of an assault with intent to murder, the jury must acquit. The sixth likewise required that all the material averments of the indictment should be proved. The third required an acquittal if there ivas any reasonable hypothesis, deducible from all the evidence, than that of the defendant’s guilt. The ninth was that defendant was charged with an assault upon John Warnicott with intent to commit murder, and unless the jury believed, beyond a reasonable doubt, that defendant did make such an assault, their verdict should be not guilty. And the sixteenth was that the defendant must have made an assault with a revolver upon Warnicott.

Without discussing in detail the refused instructions, we deem it enough to say that they were, for the most part, embraced generally, if not specifically, in those which were given for the defendant. Others had no basis in the evidence to support them. The greater part of the refused instructions were but in iteration and variation of the requirement of the intention to murder. The seventh instruction for the People laid down that such intention must be shown, but that direct testimony was not necessary to prove it,—that it might be inferred from facts and circumstances. The eighteenth refused instruction was, that if the shot fired had killed Warnicott, and the killing would not have been murder, but would have been manslaughter, then the jury should acquit. There was nothing in the facts of the case to warrant such an instruction. Upon the whole ruling on instructions we do not find there was any material error.

The judgment must be affirmed.

Judgment affirmed,.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    The Board of Supervisors of Logan County v. The People ex rel. Commissioners of Highways of the Towns of West Lincoln and Sheridan.

      Filed, at Springfield March 27, 1886.

    1. Bridges—county aid—of the time of making the application. A bridge was washed away in February, 1883, while the Bead law of 1879 was in force. About the last of May following, the commissioners of highways met and agreed to rebuild the same, and in May or June, 1883, made a contract for a new wooden bridge, to be set upon piles, and obtained a county appropriation to aid in its construction, which was not drawn. The contractor went to work in August, 1883, and found it impracticable to build a pile bridge, when he was released, on September 10, 1883. On proper notice a contract was let for the building of an iron bridge on stone abutments, andón the next day the commissioners presented their petition to the county board, setting up the making of the contract, with the reasons and necessity therefor, and asking for an appropriation of one-half of the contract price. The county board appropriated a part only, and refused to give any further aid: Held, that if the petition to the county board showed the facts required by section 19 of the Boad law of 1883, to authorize an appropriation of any part of the amount demanded, the county board had no discretion to refuse the whole amount named in the petition, and that the application was not made too late.
    2. Same — emergency ■—destruction of bridge before act of 1883 took effect. An emergency for the speedy rebuilding of a bridge under section 19 of the Boad and Bridge law of 1883, may exist, although it originated before that law took effect. Under that section it is made the duty of the commissioners of highways to let the contract for the new bridge before applying to the county board for aid, even if the emergency which made it detrimental to the public interests to delay the rebuilding of the bridge, occurred before or after the act of 1883 took effect. The time when the emergency occurred is not material, but rather the fact that délay in rebuilding would be of public detriment.
    3. Highway—proof of its existence—when the fact is directly in issue, or only questioned collaterally. Where the existence of a public highway is directly in issue, it must be proven either that it has been laid out in pursuance of a law of the State, or that it has been established by dedication, or used by the public as a highway for twenty years. But where its existence is only collaterally in issue, it is sufficient to show that it has been used and traveled as a highway by the public, and recognized and kept in repaisuch by-those having charge of the roads. This is prima facie evidenc. its existence, but liable to be rebutted by proof to the contrary.

      Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Beach & Hodnett, and Mr. Robert Humphrey, for the appellants: ,
    Relators must set forth, in their petition, every material fact necessary to show that it was the plain legal duty of the board of supervisors to make the appropriation. Hall v. People ex rel. 57 Ill. 307; People ex rel. v. City of Elgin, 66 id. 507; People ex rel. v. Davis, 93 id. 133.
    The statute upon which this proceeding is based, was not passed until after the bridge was swept away, and has a prospective operation only. Thompson v. Alexander, 11 Ill. 54; Conway v. Cable, 37 id. 82; Robinson v. Rowan, 2 Scam. 499; Knight v. Begole, 56 Ill. 122; In re Tuller, 79 id. 99; Marsh v. Chestnut, 14 id. 223; Town of LaSalle v. Blanchard, 1 Bradw. 635; People ex rel. v. Thatcher, 95 Ill. 109; Newkirk v. Chapron, 17 id. 384.
    There was no emergency as contemplated by statute laws of 1883, section 19, page 142.
    There should be proof that the bridge was part of a public highway. People ex rel. v. Supervisors, 47 Ill. 256.
    To constitute a highway by dedication, there should be satisfactory proof of an intent to dedicate. Kelly v. City of Chicago, 48 Ill. 390; Fisk v. Havana, 88 id. 208; Manrose v. Parker, 90 id. 583; Chicago v. Johnson, 98 id. 618; Kyle v. Town of Logan, 87 id. 64.
    Messrs. Blinn & Hoblitt, for the appellees:
    The board of supervisors have no discretionary power upon a proper petition for an appropriation to build a bridge. Rev. Stat. sec. 19, chap. 121; People ex rel. v. Supervisors, 100 Ill. 640.

      Where a bridge in a public highway was suddenly destroyed, immediately before the statute took effect authorizing appropriations to be made by the board of supervisors after a bridge had been rebuilt, if the bridge was rebuilt after the statute took effect, its provisions would apply.
    Proof that a road was traveled by the public as a highway, and is recognized and kept in repair by the authorities having charge of public highways, raises a legal presumption, subject to be rebutted, that such road is a public highway. Eyman v. People, 1 Gilm. 8; Nealy v. Brown, id. 12; Railroad Co. v. Adler, 56 Ill. 344; Railroad Co. v. Benton, 69 id. 114.
    By the statutes of this State, bridges across streams in public highways, at or near town lines, are required to be rebuilt, when destroyed, jointly by the two towns, the commissioners of highways of the two towns agreeing as to the proportion to be paid by each town. Sec. 21, chap. 121, Boad and Bridge law.
   Mr. Justice Magruder

delivered the opinion of the Court:

There was a public highway on the line between the towns of West Lincoln and Sheridan, in Logan county. In the fall and winter of 1883 the commissioners of highways of these towns built an iron bridge, upon stone abutments, over Sugar creek, at a point where said highway crossed the creek, and ■where the creek crossed the line between the towns. The bridge cost $4360, one-half of which is $2180. The board of supervisors of the county paid $1000 of the $2180, but declined to pay any more. The highway commissioners filed their petition in the circuit court of Logan county, at the September term, 1884, for a mandamus to compel the board to appropriate the remaining $1180 towards paying for the cost of the bridge. On the trial, the jury found the material facts, under written instructions from the court, in favor of the petitioners, and thereupon the court ordered the writ of mandamus to issue, as prayed for. Upon appeal to the Appellate Court for the Third District, the judgment of the circuit court was affirmed, and a further appeal is prosecuted from the Appellate Court to this court.

The 19th section of the act of 18S3, in regard to roads and bridges, (Hurd’s Stat. 1885, chap. 121, p. 1050,) is as follows: “When it is necessary to construct or repair any bridge over a stream, or any approach or approaches thereto, by means of an embankment or trestle work on a public road in any town, or over or across a town line, in which work the town is wholly or in part responsible, and the cost of which will be more than twenty cents on the one hundred dollars on the latest assessment roll, and the levy of the road and bridge tax for that year in said town was for the full amount of sixty cents on each one hundred dollars allowed by law for the commissioners to raise, the major part of which is needed for the ordinary repair of roads and bridges, the commissioners may petition the county board for aid, and if the foregoing facts shall appear, the county board shall appropriate from the county treasury a sum sufficient to meet one-half the expenses of the said bridge or other work, on condition that the town asking aid shall furnish the other half of the required amount. The expenditure of these joint funds shall be made by the commissioners and two persons appointed by the board of supervisors, and any surplus funds appropriated by the county board after the completion of the work, shall be paid into or lapse into the county treasury: Provided, however, that before any bridge or approaches as contemplated as above, shall be constructed or repaired under the provisions of this section, the commissioners shall make a careful estimate of the probable cost of the same, and attach thereto their affidavits that the same is necessary, and will not be made more expensive than is needed for the purpose desired, and such estimate and affidavit shall be filed with the petition: Provided, that in case of some emergency arising from the sudden destruction or serious damages to a bridge or its approaches, when delay in repairing or rebuilding the same would be detrimental to the public interest, such petition to the county board may be presented during the progress of the work or after its completion, and if the facts appear as contemplated by this section, then the county board shall appropriate one-half of such cost, with like condition that the town pay the other half. ”

The last petition presented to the county board under this section, asking for an appropriation of half the cost of the bridge, was so presented on June 4,1884, and after the completion of the bridge. ■ •

The first question is, whether, under the proven facts in the case, there was such an emergency as was required by the second proviso of the above section, to justify the presentation of the petition to the county board after the completion of the bridge. In February, 1883, the wooden bridge over Sugar-creek, which had been there prior to that time, and had been built on piles, was swept away by the-floods. About the last of April, 1883, the highway commissioners of the two towns had a meeting, and made an agreement to rebuild the bridge, each town to pay an equal part of the expense. In May or June, 1883, they accordingly made a contract with one Kirkpatrick to construct a new pile bridge at the point where the old one had been washed away. They also presented a petition to the county board in June, 1883, asking for an appropriation of $550 to aid them in rebuilding, which appropriation was made, but never used, for reasons hereafter stated. Kirkpatrick went to work in August, 1883, and found that it would be impossible to build a pile bridge, because the water had washed away the earth in which the piles of the old bridge had stood, leaving a foundation of hard-pan and rock. Into this foundation wooden piles could not be driven. On August 25, 1883, the commissioners released Kirkpatrick from his contract, and determined to build a wooden bridge on stone abutments. Finding, however, that an iron bridge on stone abutments would only cost $75 or $100 more than a wooden one, they proceeded at once to advertise for bids, and on September 10,1883, ma°de contracts for the construction, at a cost of about $4360, of a stone and iron bridge, which was completed in December, 1883. The commissioners presented a second petition to the. county board on September 11,1883, setting up the making of the contracts of September 10, 1883, and the reasons and necessity therefor,- and asking that the previous appropriation of $550 be revoked, and that a new appropriation be made of half, the cost of the stone and iron bridge, as fixed by the contracts. . The board, hpwever, only appropriated $1000, and refused any further sum, and appointed two of their number to superintend the construction of the bridge. The commissioners filed a- third petition for $1180,' as above stated, after the bridge was completed, and under the second proviso of the 19th section, above quoted. The prayer of this petition was refused.

The jury found, and the evidence warranted the finding, that the public necessities required a new bridge to be built in the place of the old one, at as early a date as possible; that the commissioners were guilty of no delay in making .their contract with Kirkpatrick, as the water in the creek was too high in the spring and early summer of 1883 to do any work, and if Kirkpatrick was guilty of any unnecessary delay after the contract was made with him, they were not responsible for it; that as soon as possible after ascertaining the impossibility of building a bridge on piles, they took measures to build one on stone abutments; that the contract for the stone and iron bridge could not have been let at all in 1883, if the commissioners had waited before advertising for bids until after the board of supervisors met, on September 11, 1883, which was the date of their first meeting after July 9, 1883, and that the commissioners were justified, by the exigencies of the case, in letting the contracts, as they did, on September 10, 1883.

If the petition filed with the board on September 11, 1883, which informed that body of the contracts on the very day: after they were made, was sufficient to justify an appropria- ■ tion of $1000, it was sufficient to justify an appropriation of the full amount asked. It gave the precise figures at which the contract had been let, after fifteen days’ notice, by advertisement, of such letting, and, in furnishing the contract figures, it at the same time furnished as careful an estimate of the cost of the bridge as could be made. Upon the supposition that it sufficiently showed the facts required by section 19, to authorize an appropriation of any part of the amount demanded, the county board had no discretion to refuse the whole amount named in the petition. (The People ex rel. v. Supervisors, 100 Ill. 640.) The application was not made too late because the commissioners had already let the contract. (Town of New Boston v. Supervisors, 110 Ill. 197.) But whether the petition filed in September ivas sufficient or not, that filed in June, 1884, complied with the requirements of the statute. An emergency had arisen from the sudden destruction of the old bridge. Delay in building the stone and iron bridge, after the impracticability of building one on piles had been made manifest, would have been detrimental to the public interest.

It is said that as the old bridge was swept away while the law of 1879 was in force, and before the law of 1883 went into effect, the latter law can not be made to apply to an emergency which arose before its passage. The act of 1883, above, named, went into force on Julyl, 1883, and repealed the act of 1879, “in regard to roads and bridges, ” etc., which had been theretofore in force since July 1, 1879. If the objection made is a sound one, then, in case a bridge had been suddenly destroyed one day before July 1, 1883, the highway commissioners could not proceed to build a new one in its' place and apply to the county board “during the progress of the work, or after its completion, ” for money enough to pay for half its cost, even though a delay in commencing the construction of the bridge until the next meeting of the board would be seriously detrimental to the public interests. Such a result could not have been intended by the legislature. It makes no difference that the old bridge was destroyed before the new law went into effect. The water in the creek continued so high that work could not be begun on the new bridge until after July 1, 1883. The same emergency, therefore, which arose before that date, continued to operate as a spur to prompt action after that date. The material fact was, that delay in rebuilding would be detrimental to the public interests. When such detriment to public interests was threatened, it was the duty.of the commissioners to let the contract at once. It was not material whether the emergency which made it so injurious to indulge in delay, occurred before or after the passage of the new law. It is true that a retrospective effect will not be given to a statute unless it clearly appears that such was the intention of the legislature. But this act of 1883 is not made to have a retroactive operation because a proceeding under it has grown out of an emergency that occurred before its passage. No accrued rights are affected. No existing liabilities are increased or diminished. The county board was liable to pay half the cost of the bridge under the old law, and it is liable to the same extent, and no more, under the new law. The change made by the second proviso of the 19th section was merely in the time of the application for an appropriation. Upon a given state of facts such application could be made, by the terms of that proviso, during or after the building of the bridge, whereas, theretofore, it could only be made before the work on the bridge was begun.

It is next objected that the road, of which the bridge in question was a part, was not “a public road, ” in the sense in which those words are used in section 19 of the act of 1883. The board of supervisors appropriated $550 in June, 1883, to aid in building a wooden bridge at the point where the stone and iron bridge has since been built, and made no objection, at that time, that the road was not a public highway. The board again appropriated $1000 in September, 1883, to aid in constructing this very iron and stone bridge, and appointed two of its members to superintend such construction, and yet, at that time, made no objection to the road as not being . a public highway.

The second instruction given for appellees is claimed to be erroneous, as not requiring sufficient proof of the existence of a public road. That instruction is as follows: ”

“The court instructs the jury, that if they believe, from the evidence, that the road on the town line between the towns of West Lincoln and Sheridan, across Sugar creek, had been ten years an open public road, and had been recognized as such by the owners of land over which it runs, and also by the public authorities of the towns of West Lincoln and Sheridan, as a public highway, and worked and repaired, and bridges built across the stream by said authorities, then that is sufficient proof of the existence of a public highway in this ease.”-

Under this instruction the jury found that a public highway existed at the point where the bridge was built, and the proof in the record abundantly sustains their finding. It is true that ordinarily, where the existence of a public highway is directly in issue, it must be proven either that the road has been laid out in pursuance of a law of the State, or that it has been established by dedication, or used by the public as a highway for twenty years; but where, as here, the existence of'the highway is only collaterally in issue, it was sufficient for the appellees to introduce such proof as made a prima facie ease in favor of the existence of a public road. Appellees did this, and thereby shifted the burden upon appellants to disprove the prima facie case so made, which appellants failed to do. A similar instruction to the one above quoted was held to 'be good in Eyman et al. v. The People, 1 Gilm. 8, where it was said: “If a road is used and traveled by the public as a highway, and is recognized and kept in repair as such by the county commissioners and supervisor, whose duty it is by law to open and repair roads, proof of these facts furnishes a legal presumption, liable to be rebutted, that such road is a public highway.” (Nealy v. Brown et al. County Comrs. 1 Gilm. 12; Chicago and Alton Railroad Co. v. Adler, 56 Ill. 344; Illinois Central Railroad Co. v. Benton, 69 id. 174.) We are therefore of opinion that no error was committed by the giving of the second instruction asked for by the petitioners, and that, under the facts of this case, the proof of a public road was sufficient.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Isaac Darst v. John B. Enlow.

      Filed at Springfield March 27, 1886.

      Boundary—division line by adoption or agreement. If the owners of two adjoining tracts of land agree that a hedge between them is on the true line, and adopt it as the division line, and hold possession in accordance therewith for many years, the parties and then- privies in estate, after such lapse of time, will be estopped from disputing the correctness of such adopted line.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. H. R. Benson, and Messrs. Tipton & Beaver, for the appellant:
    The plaintiff having proved title, the real question on the trial was, where the true line was between the two eighties. The evidence shows the hedge fence was not set out with any view of settling the line, nor is there any evidence of an agreement as to the hedge being the line.
    The doctrine of adverse possession is to be taken strictly, and is not -to be made out by inference, but by clear and positive proof. It must lie visible, open, exclusive and notorious. It must be hostile in its inception, and so continue, and must continue for the whole period of twenty years. Irving v. Brownell, 11 Ill. 413; Turney v. Chamberlain, 15 id. 273; McClelland v. Kellogg, 17 id. 504; Goewey v. Urig, 18 id. 241; Brooks v. Bruyn, id. 541; McNamara v. Seaton, 82 id. 501.
    It was only by the consent and agreement, and upon condition by Oliver Pease, who owned the land now owned by the appellant, that Christian J. Gillespie was permitted to join his fence to the hedge in question, and until notice to Oliver Pease by Christian J. Gillespie, or persons claiming under him, that they were holding it adversely, the statute would not begin to run, and the fact that the persons claiming under Christian J. Gillespie may have, at times, encroached upon the strip of land in question, would not be sufficient to put Pease or appellant upon notice that they were holding the strip of land adversely, Pease at all times asserting his ownership to this strip of land. We think this case is clearly within the cases of McNamara v. Seaton, 82 Ill. 498, Quinn v. Eggleston, 108 id. 248, and Grimm v. Murphy, 110 id. 271.
    Messrs. Fifer & Phillips, for the appellee:
    Our claim of the land east of the hedge is based upon three facts: First, that the hedge is on the true line according to the original government survey; second, that Gillespie, who first improved the Enlow. eighty, and the subsequent owners thereof, together with Oliver Pease, recognized the hedge as a boundary line; and third, that Enlow and his grantees have had adverse possession for more than twenty years prior to the commencement of this suit.

      If it be true that the hedge was recognized and treated as the boundary line, then there can be no recovery in this ease, even though twenty years’ possession has not elapsed, and the finding of the court below on this question of fact is the same as the verdict of a jury, which is conclusive upon this court. Hubbard v. Stearns, 86 Ill. 35; Cutler v. Callison, 72 id. 113; Bitter v. Saathoff, 98 id. 266 ; Crowell v. Maughs, 2 Gilm. 419.
    That the third reason presents a good defence, see Hubbard v. Stearns, 86 Ill. 35; Lavalle v. Strabel, 89 id. 370; Daniels v. People, 21 id. 439.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was ejectment by Darst, against Bnlow, for the following described piece of land in McLean county: Commencing at the south-east corner of the west half of the south-east quarter of section 35, township 24 north, range 1 east, running thence north, on the east side of said tract of land, fifteen chains, thence west fifteen links to the line of hedge running south, thencp south on the line of hedge to the south line of said tract, thence east fifteen links to the place of beginning, containing one-quarter of an acre. The cause, by agreement of parties, was tried by the court without the intervention of a jury, and verdict and judgment were rendered for Bnlow. Darst took a new trial under the statute. The cause was again, by agreement of parties, tried by the court without the intervention of a jury, and again the verdict and judgment were given for Bnlow. The case is here by the appeal of Darst.

One John F. Henry purchased and received a patent from the United States for the south-east quarter of section 35,. township 24 north, range 1 east. He sold, and conveyed by deed, the west half of this tract to Oliver Pease, on the first day of May, A. D. 1847. In 1850, Pease planted a hedge on what Bnlow claims was intended as his east line, but on what Darst claims lacked fifteen links of bis east line, and as Darst further claims, intending thereby to leave a private roadway, east of the hedge, on his tract. The hedge has since remained where it was then planted. Pease remained in possession of that part of the tract west of the hedge until his death, which Avas, perhaps, about the commencement of the year 1S79. The executor under his will, within the same year, sold and conveyed the said Avest half of the quarter section to Darst, and Darst thereupon took possession, and has since retained possession of that part of the tract west of the hedge.' On the first day of May, A. D. 1845, Henry sold and conveyed the east half of the quarter section to Christian J; Gillespie. In 1852 Gillespie inclosed it by putting a fence on the north, south and east sides, treating the hedge planted by Pease as a fence on the west side. Gillespie remained in possession of the tract as thus inclosed, until his death, in I860. The title Avhich thereupon descended to the heirs at law of Gillespie, he dying intestate, has been, through various mésne conveyances, vested in Enlow.

If the hedge is not on the true line between the tracts, that line, according to AA'hat we regard as a preponderance of the evidence, at the south end is only from seven and one-half to ten feet east of the south end of the hedge, and at the north end the line either intersects or comes within • two or three feet of the hedge, thus forming a triangle between the hedge and the true line. This conclusively shows that if the hedge was not put upon the true line, Pease did not know where the true line was, for no one would intentionally leave such a strip of land for a highway. There is evidence that Pease intended the hedge to be on the line betAveen the tracts, and there is some evidence that a former line had been surveyed as the line dividing the tracts where the hedge was planted; and one witness testifies that on appealing to Pease to unite with the neighbors and have that line definitely located by the surveyor, he declined, saying, with an oath, that he “ymuldn’t pay a cent,—he had his complement of land, and intended to stick to it. ”

The evidence with regard to the use of this strip as a private way, is clearly insufficient. There is, it is true, proof that near the south-west corner of the Bnlow tract there were temporary bars for some time, and that persons occasionally passed through them; but the clear preponderance of evidence is, that those bars were east of any point pretended as the southern end of the true line between the tracts, and that they were clearly on the Bnlow tract, and the proof fails to show that any fixed line of travel was ever observed by persons entering through these bars; and it is clear that for a large part of the time travel with wagons over the south end of the disputed strip would have been impossible, on account of large locust trees growing upon it.

There is evidence that Pease and Gillespie agreed that Pease should have a right to enter on the east side of the hedge, through Gillespie’s fence, and that Pease required Gillespie to trim and keep up the south half of the hedge as the condition upon which Gillespie should join his fence to the hedge; but this is entirely consistent with the idea that the hedge was intended to be a division fence. It was reasonable that Gillespie should do something for the use of the hedge, and this certainly was not more than in fairness he 'should have done for its use. If Pease and Gillespie intended the hedge as a division fence, it must remain-such. If they agreed that this hedge was on the line, then, after this great lapse of time, possession meanwhile having been uniformly in accordance with that agreement, it can not now be questioned. Hubbard v. Stearns, 86 Ill. 35; Cutler v. Callison, 72 id. 113; Bitter v. Saathoff, 98 id. 266; Crowell v. Maughs, 2 Gilm. 419.

We can not say that the court erred in finding that Darst failed to make out a case entitling him to recover.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    Lewis F. Chamberlain v. John M. Chamberlain.

      Filed at Ottawa March 27, 1886.

    1. Evidence—as to indorsements upon a promissory note, favorable and unfavorable to the parly producing them. Where a plaintiff introduces a promissory note of the defendant in evidence, all indorsements of payments thereon are prima facie evidence against the plaintiff that such payments have been made, but they are liable to be explained or rebutted.
    2. But where the maker of a note seeking to avoid its payment, produces and offers the same in evidence, a memorandum indorsed thereon, not of payments by him, is not evidence in his favor, unless it is shown to have been made while the note was in the possession of the payee or other legal holder, or made by some one having authority to make it.
    3. In a suit upon a lost note, the plaintiff testified that he first missed the note from his trunk while on a visit to the makers, and that he could not find the same. On the trial the defendant produced a note purporting to have been given by him to the plaintiff, but differing in date and amount from that claimed by the plaintiff, having this indorsement thereon, claimed to be in the handwriting of the father of the maker and payee: “E., (the defendant) I have paid this note in full to John, (the plaintiff) aind send it to you,” and signed by the father, which was with such indorsement offered in evidence by the defendant. The court admitted the note, but refused to let the indorsement go to the jury: Held, that the indorsement was properly ■ rejected.
    4. After the loss of a promissory note, and suit thereon, the maker produced what he claimed to be the original note, and testified that he received' the same from the father of both maker and payee, in a letter, the father being dead, and offered in evidence on the trial an indorsement on the same, which the evidence tended strongly to show was in the handwriting of the father, to the effect that the latter had paid the note, without stating when or how, together with the father’s letter of the same import,—which, on objection, was excluded: "Held, that the proposed evidence was not admissible as a part of the res gestee, or on any other legal grounds, and that such entries and writing were but hearsay.
    5. Action upon a dost note—of the pleadings and the evidence—as to the identity of the note. Where the pleadings are so framed as to allow it, the plaintiff may recover upon a lost note, notwithstanding he may be mistaken as to the date of the same and the exact amount thereof, where the evidence shows otherwise that he has the right to recover.

      6. In an action upon a lost note given in renewal of a prior note, one count of the declaration described the note as being dated April 20,1874, and for $954.47, as the same was claimed by the plaintiff, and another described it as of the date of February 12, 1874, and for $944.06, being in accordance with the claim of the defendant, who also claimed its payment. There was no claim that there were two notes. The court instructed the jury that they might find for the plaintiff under either count, if the evidence warranted such finding: Held, there was no error in giving such instruction.
    7. Practice—admitting evidence in chief after closing. After a defendant has closed his evidence in chief as to the facts in the case, and the plaintiff has closed his testimony in rebuttal, it is a matter of discretion in the trial court whether the defendant shall be allowed to give further evidence in chief upon the same question.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding. .
    On the 10th of March, 1868, appellee loaned appellant $600, and took his note for $601.50, the '$1.50 being the amount of revenue stamp then required by law. This note was subsequently taken up and a new one given. Appellant claims that the new note was dated February 12, 1874, and was for the sum of $944.06, while the appellee claims it was dated April 20, 1874, and was for the sum of $954.47. The declaration, as amended, contained a count upon each of the two supposed notes. The one dated April 20, 1874, was claimed to have been lost by appellee before the bringing of the suit. Appellant filed a plea denying the execution of the note for $954.47, dated April 20, 1874, verified by his affidavit, and a plea of payment of the note of $944.06, dated February 12, 1874. At the trial, proof of the making of the note of April 20 and of its loss was made. Appellant claimed, and his testimony tended to show, that he never had but the two notes of his brother, (appellant,),the one for $601.50, first given, and the renewal note of $954.47, and that appellee went to the house of appellant, in February, 1882, and had in his trunk the note for $954.47, and that it got out of his trunk some way, and was lost while he was at appellant’s house, at that time, and it was wholly unpaid, except $100 paid in 1875, and $100 paid in 1877. The appellant produced on the trial the note for $944.06, which he testified was the one given in renewal of the first note given by him to appellee, and further testified that he received a letter from Lewis Chamberlain, who was the father of appellant and appellee, inclosing to him this note now produced. On the back of this note was indorsed these words: “Freeman, I have paid this note in full to John, and send it to you.” On objection by appellee, this indorsement was excluded from the jury. Appellant also offered the letter of Lewis Chamberlain, which contained the note when sent to him. The court admitted the words:
    “Hebron, February 4, 1884.

    “Freeman—Now, Freeman, inclosed you find the John note. I send it to you. Lewis Chamberlain.”
    —But excluded the words in that letter, “I have paid it off. ” Appellant admitted the giving of the first note, and a renewal thereof, but claimed that the renewal note was the one produced by him. Appellant does not claim that he ever paid appellee anything on the note, except $100 in 1875, and $100 in 1877, both of which are admitted and credited on the note produced by appellant, but insists that their father paid appellee and took up the note for $944.06, and sent it to him by mail. The verdict was for appellee, in the sum of $1587.70. Motion for new trial was overruled, and judgment on the verdict. Appellant appealed to the Appellate Court, where the judgment of the circuit court was affirmed. He now brings the case to this court by appeal.
    Mr. B. C. Taliaferro, and Messrs. McConnell & Morgan, for the appellant:
    The memorandum indorsed on the note wras also a credit or memorandum of payment in full, and should have gone in evidence with the note. Long v. Kingdon, 25 Ill. 66.

      Appellant was entitled to introduce this memorandum, and the whole of the letter of February 4, 1878, in evidence, so that the witnesses and the jury might compare the handwriting of the two. Brobster v. Chill, 64 Ill. 356; Rogers v. Shaler, Anth. N. P. 149; Merchant v. Will, 1 Tuck. 151; Dubois v. Baker, 30 N. Y. 355; 40 Barb. 556.
    The indorsement on the note was admissible as part of the res gestee, as the declaration of one in possession, after his death. Putnam v. Osgood, 52 N. H. 148; Quinn v. Eggleston, 108 Ill. 248; 1 Greenleaf on Evidence, sec. 128.
    As showing this entry was admissible in evidence, see 1 Wharton on Evidence, secs. 226, 249; 2 Best on Evidence, sec. 507; Greenleaf on Evidence, secs. 147, 108; 2 Col. 442 ; 4 Scam. 556; 19 Ill. 34; 45 id. 431; Abbott’s Trial Evidence, 807, note 14; Whitlock v. Hay, 58 N. Y. 481; Foster v. New Borough, 66 Barb. 645.
    If a receipt is delivered by letter, the letter is evidence as a part of the res gestee. Abbott’s Trial Evidence, 404, note 5; Durling v. Miller, 24 Barb. 149.
    Mr. John C. Pepper, for the appellee:
    The entry on the back of the note was not evidence in this case. Anything the dead man said or wrote about said note while he had possession of it, would be legitimate evidence in any case where his interests were involved. While possession is prima facie evidence of ownership, we do not know that the dead father ever possessed it, except by bis statement, and his declaration was not adverse to his interest. The law of this case is laid down in Kent v. Mason, 79 Ill. 540. See, also, Prior v. White, 12 Ill. 261; Fisher v. Meek, 38 id. 92; Winslow v. Newlan, 45 id. 145; United States v. Hutchins, 67 id. 348; Railroad Co. v. Bell, 70 id. 102; Robertson v. Brost, 83 id. 116; Callaghan v. Myers, 89 id. 566; Bennett v. Stout, 98 id. 47; Cummins v. Leighton, 9 Bradw. 186.
   Mr. Justice Shope

delivered the opinion of the Court:

The arguments filed in this cause on either side are devoted mainly to a discussion of the facts. The determination of the Appellate Court is conclusive of all questions of fact, and we are permitted to examine into the evidence only to ascertain whether the law was properly applied by the trial court, and whether there has been error in the admission or exclusion of testimony.

It is insisted that the circuit court erred in excluding from the jury the memorandum on the back of the note produced by appellant, and claimed to be in the handwriting of Lewis Chamberlain, and the portions of the letter of Lewis Chamberlain in which it is claimed the note was sent to appellant. Two reasons are assigned why the exclusion thereof was erroneous. It is said by counsel that the note having been produced by appellant, and admitted in evidence, the indorsements on the-back of it were also admissible, and the-case of Long et al. v. Kingdon, 25 Ill. 66, is cited in support. In general it is true that where the note comes from the possession of the party seeking to enforce payment, all indorsements of payments thereon are prima facie evidence that such payments have been made, but such indorsements may even then be explained. This is as far as the authority cited goes. When, however, as in this case, the note comes from 'appellant, who is the maker, and who is seeking to avoid its payment, if he wishes to introduce memoranda indorsed on the note, and which is not the mere indorsement of payments, he must first show that it was made while in the possession of the payee or other legal holder of the note, or made by some one having authority to make it.

It is said this indorsement of the words, “Freeman, I have paid this note in full to John, and send it to you—Lewis Chamberlain,” was made by Lewis Chamberlain while the note was in his possession; but there is no competent testimony offered to prove this fact, nor do we find any evidence in the record tending to show that such memoranda on the note was in Lewis Chamberlain’s handwriting, or that any such evidence was offered by appellant. The evidence tends to show that the letter referred to is in the handwriting of the father, Lewis Chamberlain. But suppose it be admitted that the memorandum was written by Lewis, is the memorandum and letter, or either, competent evidence to prove the fact therein stated ? The court admitted so much of the letter as related to or was connected with the act of sending the note, as part of the res gestee of that act, but excluded all that portion which attempted to state what had been done at some previous date. It is testified to, and not contradicted, that appellee lost the note of appellant some time before the trial, and if the note produced by appellant is the genuine note, it turns up for the first time, after its alleged loss, in the hands of appellant, so far as known or testified to by any person.

There is no pretence that appellant ever paid the note, or any part of it, except $100 in 1875, and $100 in 1877, both of which are admitted by appellee. The only evidence that the note was ever in Lewis Chamberlain’s possession, is the testimony of appellant that he received it in the letter offered in evidence purporting to be from his father, and which there is evidence strongly tending to show was in the father’s handwriting. All the rest depends upon the statement written on the back of the note and contained in the letter. It is contended that this evidence is admissible upon two grounds: First, because Lewis Chamberlain was in possession of the note when they were written; he was dead at the time of the trial, and the memorandum and letter were made and written in the usual course of business, and are against his interests; and secondly, that such waitings are admissible as part of the res gestee. To be competent as res gestee, they must have been cotemporaneous with and explanatory of the transaction of paying off and taking up the note,—part of that transaction. This they do not purport to have been. When the note was paid, if ever, does not appear, and they do not of themselves state, but on their face each is but a narration of an event that had previously taken place,—of something the writer had done at some time in the past. These writings are not admissible upon that ground, nor can they be admitted upon any ground. As to these parties, they fall within none of the rules admitting the declarations of third parties. Here there is, as said, nothing purporting to show when the note was paid, if ever, nor that this entry on the back of the note was done in the regular course of business, and it can not be said to be against the interest of Lewis Chamberlain whether he intended a gratuity to appellant or not. (1 Green-leaf on Evidence, sec. 120.) We have seen that this is not an indorsement on the note by a holder, of a payment made on the note by any one liable thereon as maker, indorser, or otherwise, but an entry thereon by a stranger to it, who may have been in possession, of his act in relation thereto, and we are of opinion that it is hearsay only, and not admissible for any purpose in a suit between the payee and maker.

The objection taken to the third and fourth instructions given at the instance of appellee is, that by these instructions the jury are told, in effect, they might find for plaintiff upon either of the special counts of the declaration if the evidence warranted such finding, when the evidence showed conclusively that there was but one note, while the counts mentioned counted upon distinctly different notes. To this it may be replied, that whilst the evidence on both sides showed clearly that one note only was given by appellant to appellee, it was left in doubt as to whether the note described in the first or second count was the real note. Appellee testified that the note was for $954.47, dated April 20, 1874, and payable on demand. Appellant produced a note for $944.06, dated February 4, 1874, which he testified was the note given by him to his brother, appellee. All agree that but one note was given, and unless paid by Lewis Chamberlain, that it remained unpaid. The claim was for the same identical indebtedness, whether represented by one note or the other. The jury might very well say that appellee, testifying from memory, was less liable to be accurate as to the precise date and amount of the note, than appellant, who seemed to be corroborated by the production of a note of about the same date and amount. Suppose the jury, from all the evidence, had been satisfied that appellee was mistaken as to the exact date and amount of the note he claimed to have lost, and that appellant was correct, and the note produced by appellant was in fact the note, and further believed, from the evidence, that the indebtedness, no matter by which note represented, had not been paid, would plaintiff be precluded from recovery thereon because they believed he was mistaken, or because he was in fact mistaken as to the date or amount of the note ?

The third instruction simply told the jury under these circumstances plaintiff could recover. The fourth instruction related to the count where the note was described as appellee testified it was, and said to the jury the plaintiff might recover on that count if they believed, from the evidence, that the note then counted on had been made and delivered, and remained unpaid. It is evident, or at least will be made so, by calculating interest on the original note from February 12 to April 20, that the amounts of these notes described are substantially the same, and further, that the verdict on either would be for practically the same amount, so that if the jury found the indebtedness unpaid, it was practically of little importance which theory they adopted. There is no complaint that the verdict is excessive, if calculated on either of the notes described.

We see no objection to the seventh instruction complained of by appellant. It is not error for the court, at the request of the party, to state to the j ury the theory upon which a case is being tried, and then announce the law applicable to such theory; and it is the province of the jury to decide whether one theory or another is sustained by the evidence, under the law announced by the court. This instruction did no more than this.

These are the only instructions to which special objections are pointed out by counsel, and we are unable to see any error in others given, or in refusal of those refused by the court.

Upon the trial, appellant, after offering the letter of Lewis Chamberlain in evidence, produced the testimony of a number of witnesses, who testified that said letter was in the handwriting of said Lewis Chamberlain. After he had closed his ease in chief, and the plaintiff had concluded in rebuttal, appellant called one Edwards, and proposed to prove by him the handwriting of said letter was that of Lewis Chamberlain. Objection was made, and sustained, and appellant excepted. The evidence offered was proper in- chief. It was a matter of discretion whether it should be admitted, or not, when offered, and we can not say that the discretion was not properly exercised.

Finding no error for which the judgment should be reversed, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    Henry Shoup et al. v. Benjamin F. Shields et al.

      Filed at Springfield March 26, 1886.

    1. Trespass guare clausum fregit—as a possessory action—proof of title in the plaintiff. In trespass guare clausum fregit for damages in cutting down the plaintiff’s hedge, it is not necessary that he prove title to the land by a chain of conveyances from the government down to himself. It is enough for him to show possession of the premises alone, to entitle him to recover.

      2. Same—;justification — opening highway—cutting down a hedge not within the lines of the highway. Parties acting as commissioners of highways can not justify their entry upon the close of one and cutting down a hedge thereon, as having been done by them in opening a public highway laid out, where the proof shows that the greater part of the hedge cut down was not within the lines of the highway.
    3. Parties—in trespass for cutting down a hedge wholly on the land of one person. Where a hedge is not on the line between two tracts owned by different persons, but wholly on the land of one, the latter may maintain an action for its injury, in his own name. It is only when a hedge is on the line between different owners, that the question of co-tenancy as to it can arise.
    Appeal from the Circuit Court of Sangamon county; the Hon. W. E. Welch, Judge, presiding.
    Mr. N. M. Broadwell, for the appellants:
    No attempt was made to show title deduced from the government, but ajtpellees sought to prove title to the locus in quo by evidence of possession and payment of taxes under color of title; but the evidence failed to show possession east of the hedge, or even any adverse claim to the land east of the hedge.
    If the parties are to be held to this hedge as a monument established by them to mark the line between them, it must follow that the hedge was on a mathematical line, and, in contemplation of law, on the side of each adjoining tract, or was a division fence, deriving its support from each adjacent tract, and therefore owned by the proprietors of the adjoining lands as tenants in common. If that is so, the hedge was not on the close of either. Ferris v. Van Buskirk, 18 Barb. 397.
    All the tenants in common must join in an action for an injury to the common property. Merrill v. Berkshire, 11 Pick. 269; Austin v. Hall, 13 Johns. 286 ; Gilmore v. Wilbur, 12 Pick. 120; Freeman on Co-tenancy, sec. 347.
    The evidence tendered in regard to the laying out of the road, should have been admitted. The order laying out the road was in due form. This order is prima facie evidence of the truth of its recitals, and that the proceedings of the commissioners were regular in all respects. Rev. Stat. chap. 121, sec. 52; Shinkle v. McGill, 58 Ill. 422; Wiley v. Town, 59 id. 306; Hankins v. Calloway, 88 id. 155.
    Messrs. Patton & Hamilton, for the appellees:
    It was not necessary to show a continuous chain of title from the government. Dr. Shields, the father of appellees, went into possession of the land on which the hedge was located, under the Royal deed. His possession was coextensive with the description in the deed. Davis v. Early, 13 Ill. 192; Fairman v. Beal, 14 id. 244; Brooks v. Bruyn, 18 id. 539; Goeway v. Urig, id. 238; Dills v. Hubbard, 21 id. 328; Brooks v. Bruyn, 22 id. 572.
    Dr. Shields and appellees had such possession as would enable the latter to maintain this action. McLean v. Farden, 61 Ill. 106; Chicago v. McGraw, 75 id. 566.
    The hedge being upon appellees’ land, no question of co-tenancy arises, and therefore the cases cited have no application.
    There was no error in refusing to admit- the proceedings purporting to lay out a highway, as the hedge destroyed was not within such road. It devolved upon appellants to show that the locus in quo was a public highway. McIntyre v. Storey, 80 Ill. 127; Caldwell v. Evans, 85 id. 170; Weed v. Sibley, 40 Me. 356.
    Appellants must show that every requirement of the statute was complied with, in order to justify their act in destroying the hedge. In other words, they must show that there was a legally established road, and that the hedge was between the lines, defining its width. Dunning v. Matthews, 16 Ill. 308; Guptail v. Teft, id. 365; Taylor v. Marcy, 25 id. 518; Caldwell v. Evans, 85 id. 170; Trozell v. Rogers, 82 id. 109; Commissioners v. People, 2 Bradw. 24; Linblom v. Ramsey, 75 Ill. 246.
   Per Curiam :

This was an action of trespass guare clausum fregit, to recover damages for entering the close of the plaintiffs and cutting a hedge thereon. The plaintiffs recovered a verdict and judgment for $204, and the defendants appealed.

It is insisted the evidence does not support the judgment, because appellees failed “to show a fee simple title to the land in dispute by regular chain from the government” down to them, but relied upon a deed of the land from Joseph B. Royal, dated October 19, 1844, and possession and payment of taxes thereunder ever since the date of the deed. The jury were justified in finding from the evidence that the land upon which the hedge was situated was embraced within the description in the Royal deed; that under that deed to him, made October 19, 1844, Dr. Shields, the father of appellees, immediately went into possession of the land, living thereon, and continued in such possession to the time of his death, paying the taxes on the land every year, and that ever since the death of their father, appellees had been in such possession, and had continuously paid the taxes on the land. This evidence, as respects title or possession, was sufficient to enable appellees to recover. It was not necessary to show a continuous chain of title from.the government. It would have been enough to have shown no more than possession. The possession was coextensive with the description in the deed.

The premises were two forty-acre tracts of land lying together, north and south of each other. One Brunk owned the two corresponding forties adjoining on the east. It was a question of disputed line between the adjoining occupants. Dr. Shields and Brunk appear to have set out the hedge together. Some point is made upon this, that Shields and Brunk were co-tenants, and Brunk should have joined in the action. The preponderance of the evidence shows the hedge to have been on the land of Shields,—that it was not on the line between the two tracts,—and the question of co-tenancy does not arise in the case.

The deed from William Eamsey to David Brunt, of date May 26, 1836, was properly excluded, as it did not embrace the land in controversy.

Appellants attempted to justify the alleged act of trespass as having been done by them as highway commissioners, in the opening Of a public road which had previously been laid out. It is enough to say upon this head, that the evidence shows the hedge, at least in part, was not within the lines of the road. Enos, the surveyor, who, at the instance of the highway commissioners, laid out the road and made a survey and plat of it, testified that he made a survey of the road on the line dividing the east and west halves of the quarter section; that at the north end the hedge was twenty-five or thirty feet west from the centre of the road, and at the south end, three or four feet. Appellees’ land being on the west, and the road forty feet wide, this would leave the hedge, at the north end, five or ten feet outside of the road, though at the south end it would bring the hedge within the west line of the road. Other testimony in the case made the hedge to be entirely outside of the road.

We perceive no substantial objection to the instructions as applied to the evidence.

It is complained that the damages are excessive. The verdict was for $204. There were one hundred and two rods of the hedge. The testimony was conflicting as to the value of the hedge, and as to how much of it was on appellees’ land. Several witnesses testified the hedge was worth three dollars per rod. We can not say the damages are excessive.

The judgment will be affirmed.

Judgment affirmed.


text:
    Joseph Chesshire et al. v. The People ex rel. Robert Harper.

      filed at Springfield March 27, 1886.

      1. Quo wakkabto—constitutional requirements as to form of information. An information in the nature of a quo warranto, commencing as follows: “W. 0. It., State’s attorney in and for said county of S., who sues for the People of the State of Illinois in this behalf, comes into the said court here, on this day and for the said People, and in the name and by the authority of the said People of the State of Illinois, at the relation of B. H., according to the form of the statute in such case made and provided, gives the court to understand and be informed,” etc., and concluding, “to the damage of sai'd People, and against the peace and dignity of the same People of the State of Illinois, and contrary to the form of the statute in such case made and provided,” is not obnoxious to a general demurrer, on the ground it is not “carried on in the name and by the authority of the People of the State of Illinois,” and does not conclude, “against the peace and dignity of the same.”
    2. The constitution does not require that the People shall present or prosecute, but only that the prosecution “shall be carried on in the name of and by the authority of the People of the State of Illinois. ”
    3. Same—of the relator—whether necessary there should be one—or if one is named, whether his interest must appear. An information in the nature of a quo warranto to test a party’s right to a public office, as, that of school directors, in a legal point of view concerns public rights alone; and in such case the State’s attorney may proceed either of his own accord or at the instance of any individual relator. Should a relator be named, it is not necessary to show his interest.
    ■ 4. Same—parties defendant—directors of school district attempted to be formed. Where the legal existence of a school district is denied, the persons assuming to act as directors of the supposed district are the only parties respondent necessary to an information in the nature of a quo warranto to test the validity of the organization of the district.
    5. School distbict—formation of new one. The limitation in the formation of new school districts out of territory previously organized as one district, imposed by the amendment to section 33, approved May 31, 1881, applies to each district, so that neither must contain less than ten families. Under this section both may be regarded as new districts, although for convenience one may retain its original name or number.

      Wbit of Ebbob to the Circuit Court of Shelby county; the Hon. Jesse J. Phillips, Judge, presiding.
    On proper application, leave was given by one of the judges of the fifth judicial circuit to file in the circuit court of that county an information in the nature of a quo warranto, on the relation of Robert Harper, against Joseph Ghesshire, William Barr and Isaac Smith, which information was then filed, and is as follows:
    “State of Illinois, >

      County of Shelby. ) SS"
    “In the circuit court, October term, A. D. 1883.
    “William G. Kelley, State’s attorney in and for said county of Shelby, who sues for the People of the said State of Illinois in this behalf, comes into the said court here, on this day, and for the said People, and in the name and by the authority of the said People of the 'State of Illinois, at the relation of Robert Harper, according to the form of the statute in such case made and provided, gives the court to understand and be informed that Joseph Ghesshire, William H. Barr and Isaac Smith, for the space of ninety days last past, and more, in the county aforesaid, have held and executed, and still do hold and execute, without any warrant, title or right whatsoever, the offices of school directors of district number 9, township number 12, north, range 2, east of the third principal meridian, in the county aforesaid, which said offices said Joseph Ghesshire, William H. Barr and Isaac Smith, during all the time aforesaid, in the county aforesaid, upon the People of the State of Illinois aforesaid, have usurped, and still do usurp, to the damage of said People, and against the peace and dignity of the same People of the State of Illinois, and contrary to the form of the statute in such case made and provided.
    “And said State’s attorney, for the People aforesaid, in the name and- by the authority of said People of the State of Illinois, at the relation aforesaid, according to the form of the statute aforesaid, further gives the court to understand and be informed that said relator, Robert Harper, is a resident of school district number 3, in township 12, north, range 2, east of the third principal meridian, in said county of Shelby, and the owner of real and personal estate therein, and a taxpayer of said district, and is also the owner of real estate and a tax-payer in school district number 9 aforesaid, in town 12, north, range 2, east, aforesaid, in said county of Shelby; and the said State’s attorney further gives the court to understand and be informed that the School law, in force July 1, A. D. 1881, authorized trustees of schools to make new school districts, but required that the territory formed into a new district should contain not less than ten families, and that when changes should be made in school districts, and no appeal be taken to the county superintendent, the clerk of the trustees of schools should make a complete copy of the record of the action of the trustees, which copy shall be certified by the president of said trustees of schools, and the clerk, who shall file the same, together with a map of the township showing the districts, and an accurate list of the taxpayers of the newly arranged districts, with the county clerk ; and that if an appeal be taken to the county superintendent, and he should affirm the action of the trustees, the county superintendent shall notify the clerk, by whom the papers were transmitted, of his action, ‘and the clerk shall thereupon make a record of the same, and shall, within ten days thereafter, make á copy of the same, and the map and list of tax-payers, and deliver them to the county clerk, for filing and record by him.’
    “And the said State’s attorney gives the court further to understand and be informed, that prior to the formation of said pretended district 9, said township 12, north, range 2, east, had for a number of years been laid off into eight school districts; that at the regular April meeting, A. D. 1883, of the trustees of schools of said township, a petition was presented to said trustees, asking that school district number 3 be divided, and that a new school district be made out of the territory described in said petition, and which petition averred that said territory contained not less than ten families, which petition is filed herewith, marked ‘Exhibit A,’ and made a part hereof; that said trustees, at said meeting, granted the prayer of said petition, and attempted to form two school districts' out of said district number 3, and numbered the new district 9, as will more fully appear from the order of said trustees and the map of the school districts of said township herewith filed, marked ‘Exhibits C and D,’ and made a part hereof.
    “And said State’s attorney gives the court further to understand and be informed, that at .the time of such action of said trustees, and now, said district 9 contained fifteen families, while said district 3 contained only eight families, and after such order of said trustees, the relator aforesaid, and other legal voters of said district 3 who had opposed said petition, appealed from said decision of said trustees to the county superintendent of said county, who, on the 12th day of May, A. D. 1883, affirmed the decision of said trustees, a copy of which order of .said superintendent is filed herewith, marked ‘Exhibit D,’ and made a part hereof.
    “And said State’s attorney further gives the court to understand and be informed, that the clerk of said trustees did not make a complete copy of the record of the action of said trustees, certified by the president of said trustees and clerk, and a list of the tax-payers in either said district 3 or 9, and file the same ivith the county clerk of said county, and that said clerk, though notified in writing of his action by said superintendent, did not make a copy of the record made by said superintendent and a list of tax-payers in either of said districts, and deliver the same to the county clerk of said county, as required by the statute.

      “And said State’s attorney further gives the court to understand and be informed, that said Joseph Chesshire, William H. Barr and Isaac Smith claim to be directors of school district number 9, in said town, and have made a certificate of levy, signed by two of them, and filed the same with the clerk of the county court of said county, on the 17th day of August, A. D. 1883, asking that the amount of $400 be levied as a special tax on the taxable property of said district number 9, for the year 1883, a copy whereof is herewith filed, marked ‘Exhibit E,’ and made a part hereof.
    “And said State’s attorney, for said People, at the relation aforesaid, and in the name and by the authority of the People aforesaid, therefore gives the court to understand and be •informed, that said school district number 9 was attempted to be formed by a division of said school district number 3, and that said school district number 3, after such attempted division, did not have the number of families required by the statute, and that said district number 9 was not legally formed, and was and is not a school district under and in accordance with the statute, and therefore said State’s attorney says that Joseph Chesshire, William H. Barr and Isaac Smith, for the ■space of ninety days last past, and more, in said county, have held and executed, and still do execute and hold, without any warrant, title or right whatsoever, the offices of school directors of said pretended school district number 9, in township 12, north, range 2, east, in said county, which said offices they, during all the time aforesaid, in the county aforesaid, upon said People of the State of Illinois, have usurped, and still do usurp, to the damage of said People, and against the peace and dignity of the same People of the State of Illinois, and contrary to the form of the statute in such ease made and provided.
    William C. Kelley, State’s Attorney

      in and for said Shelby county.”

      This was sworn- to by Eobert Harper. The exhibits referred to in the petition accompanied it, hut it is unnecessary to reproduce them here.
    The defendants appeared and filed a general demurrer to the information. The relator' joined issue on the demurrer, and the court overruled the demurrer; and thereupon, the defendants electing to stand by their demurrer, and refusing to answer over, judgment of ouster was rendered. The defendants sued out a writ of error from the Appellate Court for the Third District upon the judgment, and that court affirmed the judgment of the circuit court. The present writ of error brings before this court for review the record of the last named court, and errors are assigned appropriate to that end.
    Messrs. Stephenson & Baum, for the plaintiffs in error:
    The filing of a list of tax-payers with the county clerk is not essential to the legal formation of a new school district, (School Directors v. School Directors, 73 Ill. 249,) the statute being only directory.
    The case of Potter v. School Trustees, 10 Bradw. 343, holding the making and filing of a map, etc., essential to the validity of a school district, was made under a statute different from the present.
    It is not fatal to the formation of a new district out of a previous one, that there shall be less than ten families left in the remaining part of the district. Town of Jefferson v. People, 87 Ill. 503, has no application.
    The information is not brought in the name and by the authority of the People, and as required by the constitution, but it is by William C. Kelley, State’s attorney. Wright v. People, 15 Ill. 417; Donnelly v. People, 11 id. 552; People v. Railroad Co. 13 id. 66; Hay v. People, 59 id. 94.
    The information fails to show any interest in the relator other than that of a general interest. He is not a resident of the district, and does not claim the office of school director, or show any one else is entitled to the office. Angell & Ames on Corp. sec. 756.
    These informations require as much formality as indictments, and a motion to quash, had this been an indictment, would have prevailed.
    Messrs. Thornton & Lloyd, for the defendants in error:
    The words required by the constitution were not in the informations in the eases cited, and the court properly held them bad. In this case the required words are in each count, and the information is good. People v. Dixon, 14 Ill. 476; Puterbaugh’s Pl. & Pr. 696.
    Some person must move in the matter, and the uniform practice has been for the Attorney General or State’s attorney to do so. People v. Richardson, 4 Cow. 106; People v. Mobley, 1 Scam. 217; Donnelly v. People, 11 Ill. 552; People v. Railroad Co. 13 id. 66.
    The demurrer admits the holding of the offices unlawfully, and was therefore properly overruled. The defendants must either disclaim or justify, and if the latter, they must set out their title specially. Clark v. People, 15 Ill. 217.
    The only mode in which the illegality in the formation of a school district can be inquired into or taken advantage of, is by information in the nature of a quo warranto. Trunbo v. People, 75 Ill. 564; Renwick v. Hall, 84 id. 163; People v. Newberry, 87 id. 43; Alderman v. School Directors, 91 id. 180.
    It was not necessary to have named any person as relator, but it was sufficient if filed by the State’s attorney. Hinze v. People, 92 Ill. 408; Rev. Stat. chap, entitled “Quo Warranto, ” sec. 1; People v. Board of Education, 101 Ill. 308; People v. Carpenter, 24 N. Y. 86.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Neither of the objections taken to the judgment below, is, in our opinion, tenable.

First—This information, unlike those in Donnelly v. The People, 11 Ill. 552, The People v. M. & A. R. R. Co. 13 id. 66, Wight v. The People, 15 id. 417, and Hay v. The People, 59 id. 94, cited by counsel for plaintiffs in error, follows the language of the constitution, and is prosecuted “in the name and by the authority of the People of the State of Illinois, ” and concludes, “against the peace and dignity of the same People of the State of Illinois. ” The constitution does not require that the People shall present or prosecute, but only that the prosecution “shall be carried on in the name and by the authority of the People of the State of Illinois,” (sec. 33, art. 6, Const, of 1870,) and hence, in indictments it is only required that it be said, “the grand jurors chosen, selected and sworn, in and for the county of......., in the name and by the authority of the People of the State of Illinois, upon their oath present, ” etc. Rev. Stat. 1874, p. 408, sec. 408; Whitesides v. The People, Breese, (Beecher’s ed.) p. 21. And it must follow, by parity of reasoning, it is sufficient that in an information the State’s attorney, “in the name and by the authority of the People of the State of Illinois, presents,” or “gives the court to understand and be informed,” etc., and, in practice, we are not aware that this has ever been seriously questioned. There is surplusage in the language here employed, but it is not of that character which vitiates.

Second—It is a misapprehension to suppose, as counsel seem to, that this is an information in regard to a matter of private right, It concerns, in a legal point of view, the public alone, and in such cases the State’s attorney may proceed “either of his own accord or at the instance of any individual relator.” (Rev. Stat. 1874, p. 787, sec. 1.) It is therefore not only of no consequence that the relator showed no interest in the so-called district 9, but his name might have been wholly omitted without prejudice to the prosecution.

Third—Inasmuch as the information proceeds upon the hypothesis that there is no corporation, in law, by the name of school district No. 9, it would have been impossible to make the corporation a party. The only persons, if that hypothesis be true, to be brought before the court, are those assuming to act in the capacity of directors of such district. The persons assuming to act as directors of the district were therefore the only parties that need be before the court to test the validity of the organization of the district. The People v. Draper, 15 N. Y. 532; The People v. Carpenter, 24 id. 86 ; The People v. Board of Education, 101 Ill. 308.

Fourth—In our opinion, district No. 9, under the facts admitted by the demurrer, could have no legal existence. The limitation in the formation of new districts out of territory previously organized as one district, imposed by the amendment to section 33, approved May 31, 1881, applies to each district. Neither must contain less than ten families. Both are, in fact, new districts, so far as this question is concerned, though, as a matter of convenience, for purposes of description in designating duties of officers and providing for disposition of property or funds, etc., one may be denominated the old or original district, and the other the new district. The spirit and manifest purpose of the act, if not the very letter, forbid that there should be any discrimination between the districts in the respect of this limitation. Town of Jefferson v. The People, 87 Ill. 506, is entirely analogous.

We find no cause to disturb the judgment below. It is affirmed.

Judgment affirmed.