author: Mr. Justice Sheldon

text:
    Thomas B. Murphy v. Henry Riemenschneider et al.

      Filed at Ottawa November 20,1882.

    1. Boundary—actual location of lots controls. Where the frontage of the two corner lots of a block is not given on the plat thereof, and a question arises as to the size of one of the corner lots, as affecting boundary lines between the lots, the location of the lots as actually staked must control,' and the stakes between the lots, if clearly established, will settle the corners and boundaries of the lots.
    2. Ejectment—effect of stipulation, as to ownership of lots. In an action of ejectment for lots 1 and 2 in a certain block, the real object being to settle the boundary between these two lots and two adjoining lots occupied by the defendants, a stipulation was entered into that the plaintiff was the owner in fee, and entitled to the possession of lots 1 and 2, and that the defendants were the owners in fee, and entitled to the possession of the adjoining lots, 3 and 4. The plaintiff contended, that as the defendants had not denied their possession of the first named lots by plea verified by affidavit, he was entitled to a judgment: Held, that the stipulation must be' regarded as constituting the issue to be tried, which was, whether defendants were in possession of any part of lot 2, and that according as that issue might be found there should be judgment.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Edward Body, for the appellant:
    The defendants having failed to deny their possession as to one of the lots, by plea verified, and the' plaintiff having shown title, under the statute was entitled to recover. Rev. Stat. ch. 45, secs. 22, 23.
    When the number of the lot on a plan referred to in the deed is the only description of the land conveyed, the courses, distances, and other particulars in such plan are to have the same effect as if recited in the deed. Parker v. Bennett, 11 Allen, 393; Birmingham v. Anclerson, 48 Pa. St. 253; Spiller v. Scribner, 36 Vt. 247; Proprietors v. Tiffany, 1 Greenlf. 219;
      Thomas v. Patten, (1 Shep.) 13 Maine, 329; Hunt v. Rowley, 87 Ill. 497; Davis v. Ramsford, 17 Mass. 207; Lunt v. Holland, 14 id. 149; Morgan v. Moore, 3 Gray, 319; Farnsworth v. Taylor, 9 id. 162; Murdoch v. Chapman, 9 id. 156; Rogers v. Parker, 9 id. 445; Ferris v. Coover, 10 Cal. 622; Shirras v. Caig, 7 Cranch, 48. These descriptions clearly govern in this case. Hiner v. The People, 34 Ill. 304;
    Wolcott’s and Greeley’s plats and surveys, made in March, 1882, from the stakes driven in the plowed ground some timé after the place of the original stakes had been obliterated, are not evidence upon the size, abuttals and calls of lots 1, 2, 3 and 4, of Honore’s subdivision, made, platted, measured and staked in 1858. Proprietors v. Tiffany, 1 Greenlf. 219; Thomas v. Patten, (1 Shep.) 13 Maine, 329; Lull v. Chicago, 68 Ill. 521.
    Their stakes and plat do not answer the calls of the plat in either abstract, therefore they must be rejected. Cobum v. Coxeter, 51 N. H. 161.
    Where the plan delineates streets and alleys as calls and abuttals, and boundaries of a numbered lot, they will have that effect. Farnsworth v. Taylor, 9 Gray, 162; Livingston v. The Mayor, 8 Wend. 98; Birmingham v. Anderson, 48 Pa. 253; Morgan v. Moore, 3 Gray, 321; Murdoch v. Chapman, 9 id. 156; Rodgers v. Parker, 9 id. 445; Alton v. Illinois Transportation Co. 12 Ill. 38; Rockwell v. Baldwin, 53 id. 22; Park v. Pratt, 38 Vt. 552; 2 Washburn on Real Prop. *631, *636, (4th ed.) 403, 424; Jacksonville v. Jerseyville Ry. Co. 67 Ill. 543; Canal Trustees v. Havens, 11 id, 556; Bowman v. Wettig, 39 id. 421.
    Mr. Francis Lackner, for the appellees:
    In the description of land, known and fixed monuments control courses and distances. 4 Kent, 466.
    Quantity, in the description of land, is never allowed to control courses, distances, monuments, or natural land marks, such as creeks, rivers, ponds or lakes. Bishop v. Morgan, 82 Ill. 353.
    ■The survey, as it was actually made, is the thing, and the field notes are designed to describe and represent it, and a misdescription of the actual survey can not alter or change the survey itself. Hiner v. People, 34 Ill. 304; Sawyer v. Cox, 63 id. 136; Miller v. Beeler, 25 id. 168.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of ejectment, by Murphy, the plaintiff,brought on July 25, 1873, to recover from the defendants possession of lots 1 and 2, in block 1, of Honore’s re-subdivision of certain blocks of Tiernan’s subdivision of part of section 18, town 39, range 14, in the city of Chicago. The court below, upon trial without a jury, found for the defendants, and rendered judgment accordingly, from which the plaintiff appealed.

The controversy in the case is as to the boundary line between two adjoining lots. The block in question is triangular in shape, and is bounded on the east side by Eobey street, on the south side by Polk street, and on the northwest, or hypothenuse side, by Ogden avenue. The Ogden avenue front is divided into twentyhwo lots. The two corner lots, numbered 1 and 22, respectively, have no dimensions marked on the map, and the Interior lots, numbered from 2 to 21 inclusive, have each 24 feet front, as marked on the map. In 1858, Tieman, the owner, made a subdivision, by which this block, thus bounded, became block 1 of Tiernan’s subdivision. By this plat the block was not subdivided into lots. Afterwards, Honors, a subsequent owner, made a subdivision into lots, and the lots in question then became a part of Honore’s re-subdivision of block 1 of Tiernan’s subdivision. Thereafter, the defendants became the owners of lots 3 and 4, and went into possession thereof. Plaintiff having purchased lots 1 and 2, which are still vacant, claims that his lot 1 has a frontage of 100 feet on Ogden avenue, and his lot 2 a frontage of 24 feet,—that consequently he is entitled to 124 feet on Ogden avenue. On the other hand, defendants claim that the frontage of lot 1 on Ogden avenue is but 55 feet, and that plaintiff therefore has but 79 feet front on that street,—that their occupancy commencing 79 feet from the corner, they therefore do not encroach on lot 1 or 2.

The recorded plat of Honore’s re-subdivision was burned in the fire of 1871, and the original plat could not be produced, and plaintiff introduced in evidence an abstract of title which showed a plat of this re-subdivision, whereby the plat appeared to have been recorded May 21, 1858. It shows lot 1 bounded on Robey street and on Ogden avenue. There are no dimensions put upon lot 1. Lot 2 shows 24 feet front on Ogden avenue, that its lines form right angles with that avenue, and that it is bounded in the rear in part upon Robey street, and in part upon the alley running through the block. Plaintiff testifies that he bought his lots in 1868; that he visited the premises; that there were then no enclosures on the block; that the lots were staked out; that there was one stake on the north point of the lot, at the intersection of Ogden avenue and Robey street; that the next stake on Ogden avenue, on the line running southwest, was just 100 feet south-west of that on the point; that the next stake was 24 feet from the last, and was 124 feet from the stake on the point; that there was no other stake between that on the point and the one 100 feet from it. The surveyor who laid out the re-subdivision swears that he drove stakes at the corners of each lot. The plaintiff, as also the surveyor, McDermott, testifies that all the stakes on the block, except that standing on the north point of lot 1, were plowed up in 1872, and afterwards, in 1872, new stakes were driven about the block. There is no evidence in the case of the particular location of the original stakes upon these lots, except that of plaintiff. McDermott testified that he had applied the scale to the plat in the abstract, and found the front of lot 1, on Ogden avenue, to be 100 feet by the scale. This was substantially the case made by plaintiff. Defendants introduced in evidence another abstract of title, which also shows a plat of this re-subdivision. This plat appears to agree .essentially with the one shown by plaintiff’s abstract, except as to the rear abuttal of lot 2,—in plaintiff’s abstract it appearing to be in part on the alley and in part on Bobey street, whereas by defendants’ abstract the - rear abuttal is wholly upon Bobey street, the south line of the lot striking Bobey street some distance north from the corner of the alley.

There is evidence upon the subject of the comparative accuracy of these two plats, which we will not enter into, but say that we think it shows the plat of plaintiff to be entitled to the superior credit.

But for all the evidence tending to show lot 1 to be 100 feet on Ogden avenue, there seems to be an insurmountable difficulty in the way of the admitting that extent on Ogden avenue. If that be allowed, where will lot 22, at the southwest corner, be placed ? This lot appears on all the maps as of a size at least equal to that of lot 1, while the surveyors on the side of defendant make it a little larger. But the consequence of allowing lot 1 100 feet, instead of 55, would be to crowd all the lots south of it 45 feet further south, and lot 22, the last lot, would be thrown into Polk street. There is no question that the interior lots are entitled to 24 feet each, as marked on the plats. The block, by actual measurement, has 597.5 feet; thus the twenty interior lots consume 480 feet of the entire frontage, leaving but 117.5 feet to be distributed between the two corner lots, 1 and 22, which have no dimensions given on the map. The theory of plaintiff is, that lot 22 ought to be where Polk street is now,—that that street is too far north by 33.07 feet. This is founded upon the testimony of McDermott that Polk- street, as now occupied, is 33.07 feet north of where it was as laid out by the common council, and as 'shown by original stakes. But this theory does not fully meet the difficulty, for if lot 1 is entitled to 100 feet, lot 22 is entitled to at least as much; and even if Polk street be moved 33 feet further south, where is the additional land to come from to satisfy lot 22 ?

In answer to this testimony of McDermott, Greeley testifies that he laid out and staked Polk street in 1855, under the ordinance of the city, for that purpose, of April 9, 1855 ; that it was thrown up and graded exactly where staked, he being the city surveyor at the time, and that it is now where it then was, and has not been moved either north or south. Walcott, a city surveyor, then testifies that he assisted in staking out Polk street in 1855, and that the street is located now where it was then laid out on the ground, and that its location has never been changed.

Further, the order of the city council, by the ordinance of April 9, 1855, was to extend Polk street in a straight line, from Ashland avenue, which is east of Ogden avenue, to Western avenue, which is west of Ogden avenue. The street was so extended on a straight line, and now forms a straight line from Western avenue east to Lake Michigan. Had it been laid out 33 feet further south, where McDermott claims it should have been, it would not be one unbroken straight line.

Greeley testifies that he, in May, 1858, laid out and platted Tiernan’s subdivision, and that in making the platted subdivision he had reference to Polk street as it was then, and is now, laid out on the ground; and this subdivision, the original plat of which is in evidence, gives block 1, on its north-west, a length of 594.6 feet between the actual location of Polk street and Bobey street. His recent measurement makes the length 597.5 feet, but he says this discrepancy is easily accounted for by the difference of the instruments then and now in use.

It is said that Tieman sold to Honors, and Honoré abandoned Tiernan’s, and made a subdivision of his own, and that to determine the calls of lots 1 and 2 in Honore’s subdivision, we have nothing to do with Tiernan’s plat, but withHonore’s. But we understand Honore’s re-subdivision to be but a subdivision into lots of Tiernan’s block 1, and that for the ascertainment of the location of that block, recurrence must be had to the plat of Tiernan’s subdivision. Of course, as plaintiff’s counsel insists, the lots, as actually staked out in making Honore’s re-subdivision, should control, and if the original stakes were indeed set, as plaintiff testifies he found them, 100 and 124 feet, respectively, from the north-east point, that would settle the controversy in plaintiff’s favor. But that the original stakes were so placed would be so inconsistent and irreconcilable with the map, that we can not accept it as a fact established by the proof, that such was the location of the original stakes. This would not only 'be contrary to the map as lots 1 and 22 appear upon it, but, as before observed, would leave but 17.5 feet for the width of lot 22, and we well enough know that the lot could not have been laid out with only that width.

The surveyors, Greeley and Wolcott, testified that they, one in 1881, and the other in March, 1882, made surveys of block 1 of Honore’s re-subdivision; that -one found lot 1 to have 55 feet front, and the other found it to have 54.8 feet front, on Ogden avenue; that lot 22 had 62J feet on that avenue, and each lot between 1 and 22 had 24 feet front on that avenue; that they found no stakes along Ogden avenue from the north-east point until they came to lot 15, and found the stakes (apparently old stakes) all along from lot 15 to lot 22; that all the lots between 1 and 22 were occupied, and on nearly all of them houses built, each occupant having 24 feet of ground, corresponding with the stakes above mentioned, so far as stakes were found, and with their plats, which they made and produced. In view of all the circumstances, we think it quite as probable that the lots were originally staked out in accordance with these surveys, as that the original location of the stakes of lots 1 and 2 was at the places where plaintiff testifies he found them.

The parties entered into this stipulation in open court: that plaintiff was the owner in fee simple, and entitled to the possession, of lots 1 and 2, and that defendants were the owners in fee simple, and entitled to the possession, of lots 3 and 4, so that plaintiff claims only lots 1 and 2, and the defendants claim only lots 3 and 4, the matter at issue being only the location of the boundary between said lots 2 and 3. Plaintiff’s counsel makes this point: That as defendants admit plaintiff’s title ánd right to possession of lots 1 and 2, and have not denied by special plea, verified by affidavit, their possession, as required by section 22 of the Ejectment act, the plaintiff is, in any event, entitled to judgment, and that for that reason the judgment must be reversed. In that view, plaintiff was entitled to judgment on the stipulation, and the trial was a futile proceeding. But that was not the meaning. It must be regarded that this stipulation constituted the issue which was to be tried, and that that was, substantially, whether defendants were in possession of any part of lot 2, and that according as that issue might be found there should be judgment.

We can not say that the finding of the court below for the defendants was not sustained by the evidence, and the judgment must'be affirmed.

Judgment affiimed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Michael Murphy v. The People of the State of Illinois.

      Filed at Ottawa November 20, 1882.

    1. Criminal law—larceny—what constitutes. If the owner of goods alleged to have been stolen parts with both the possession and the title to the goods to the alleged thief, then neither the taking nor the conversion is felonious. It can but amount to a fraud. »
    2. If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending that the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a larceny.
    3. Same—in the particular case. On the trial of a person on an indictment for larceny, the facts, as shown by the prosecution, were, that one C. entered a place of business kept by one F., to make a purchase, and procured the article desired. The buyer, not having the exact amount of money with which to pay for the article purchased, handed the proprietor a twenty dollar gold coin for the purpose of making “ change. ” The proprietor, on looking over Ids money on hand, said he could not “change” it, and thereupon pushed the coin towards the accused, who was standing near, and requested him to go and get the coin “changed.” The accused took the coin, left the room, and never returned or accounted for the coin. It was held, these facts made a case under the indictment.
    4. Same—variance—by whom the coin was delivered. It was charged in the indictment that the coin was delivered to the accused by 0., the buyer, while the proof showed it was delivered by F., the proprietor, to whom it had been handed by 0., for the purpose of making “ change, ” and in this it was alleged there ivas a variance. But it was held, that as to the act of delivery, F., the proprietor, was to be regarded as the agent of G., the buyer, and the rule applicable was, what the -principal does by an agent he does by himself. So the allegation was literally sustained.
    5. Same—in whom was the property in such case—and in whom the title might be alleged. -Under the facts given, the property inUie coin was properly laid in the indictment as being in O.^the buyer. In an indictment for larceny, the property alleged to have been stolen may be laid as being the property of the real owner, or of any person having a special property in it as bailee. But in this case no title passed from 0., the buyer, to either F., the proprietor, or to the accused. It may be, however, that if the property had been alleged to be in F., the proprietor, the accused could not have objected to his title, but that would furnish no objection to the property being alleged in the real owner.
    6. Same—one good count—general verdict. Where a count for larceny and a count for embeZzleihent are joined in the same indictment, if the count for larceny be good, that will support a general verdict of guilty, although the count for embezzlement be bad.
    7. Same —joinder of counts. A count for larceny and a count for embezzlement may be joined in the same indictment.
    8. New trial—newly discovered evidence—in a criminal case. Upon conviction for larceny in converting to the prisoner’s own use a gold coin which had been entrusted to him for the purpose of gettipg the same exchanged for money of smaller denominations, and to be returned to the owner, the prisoner, upon motion for a new trial, presented affidavits of persons who stated that, the prisoner did, on the day of the alleged larceny, ask them to “change” a gold coin of the denomination of the coin alleged to have been stolen. But what particular piece of money it was sought to have “changed,” did not appear, and if it had been shown to be the identical coin delivered to.the prisoner, that fact could not avail him as ground for- a new trial, as the offence was not in failing to get the money “changed,” but in failing to return it, and in appropriating it to his own use.
    9. Same—questioning competency of counsel assigned by the court to defend a person on a criminal charge. Where the trial court has assigned counsel for the defence of a person charged with a criminal offence, it mil be presumed the counsel so assigned was competent to the duty to which he was appointed, and the question of the competency of such counsel will not be permitted to be introduced as an issue on a motion for a new trial.
    Writ of"Error to the Circuit Court of Will county; the Hon. J. McRoberts, Judge, presiding.
    Messrs. Haley & O’Donnell, and Mr. J. R Flanders, for the plaintiff in error, made the. following among other points in their argument:
    The indictment charges Murphy with the larceny and embezzlement of one Coskey’s money, the second count charging that Coskey delivered to him and Fay the twenty dollar gold coin, and that they• fraudulently converted the same to their own use. The proof shows that the coin was the property of Fay, and not of Coskey. The latter parted with the title and possession when he gave the coin to F. in payment for the drinks, and never expected to receive the same again, but only the balance left after paying what he owed Fay. Fishback v. Brown, 16 Ill. 74.
    The title to the coin being in Fay, he gave it to Murphy to have it changed for smaller denominations, and Murphy went at Fay’s request alone. Murphy was responsible only to Fay, from whom he received the money. Then the proof failed to sustain the charge, and no conviction could legally be had, .oú account of the variance.
    It is necessary in both larceny and embezzlement that the ownership of the property should be laid in the indictment in the person who has the ownership, either general or special, and the proof must correspond with the allegation. 2 Bishop on Criminal Law, sec. 788; Bishop’s Criminal Procedure, sec. 718.
    To constitute embezzlement the money or thing must be obtained under color of right, and there must be its conversion to the -use of the person so obtaining it, with a fraudulent and felonious intent. What was larceny at common law, is not embezzlement under the statute. Kibs v. People, 81 Ill. 599.
    The law does not presume that because money has been intrusted to an individual that he has embezzled or appropriated it to his own use. The party asserting that fact must prove it. (Thomas v. Dunaway, 30 Ill. 373.) The mere fact of not paying the money over, is clearly insufficient. (2 Bishop on Criminal Law, sec. 376; Rex v. Smith, Russ. & Ryan, 267.) Even though he sets up an excuse never so frivolous, or a claim in himself actually unfounded, (Rex v. Norman, Car. & M. 501,) or though he absconds, (Regina v. Creed, 1 Car. & K. 63,) it is essential that there should be a denial of having received the money, or else some false account be given. Regina v. Jones, 7 Car & P. 834.
    As to when drunkenness is a defence for an act otherwise a larceny, see 1 Bishop on Criminal Law, sec. 411.

      The judgment should have been arrested because the verdict was general, and judgment could not he rendered on it for the reason the defendant could not he guilty of both the offences charged. State v. Montague, 2 McCord, 257.
    Mr. James McCartney, Attorney General, for the People:
    The defendant’s drunkenness is no defence to the crime charged. Marshall v. State, 59 Ga. 154.
    The gold coin remained the money of Coslcey until the change was given him therefor. If no change had been Returned, could not Coskey, after waiting a reasonable time and making demand therefor, have maintained replevin for the coin ? The debt was not extinguished by the delivery of a piece of money much larger than the sum due.
    The proofs show a conversion of the coin with a felonious intent. On this point, see Welsh et al. v. People, 17 Ill. 339 ; Stinson v. People, 43 id. 397; Farrell v. People, 16 id. 506 ; Bailey v. State, 58 Ala. 414; Commonwealth v. Barry, 134 Mass. 325; State v. Williamson, 1 Houst. Cr. C. 155; State v. Anderson, 25 Minn. 66; People v. Abbott, 53 Cal. 284; Elliott v. Commonwealth, 12 Bush, 176 ; Macino v. People, 19 N. Y. 127; Commonwealth v. Hurd, 123 Mass. 428; People v. McDonald, 43 N. Y. 61; Bassett v. Spofford, 45 id. 3S7; Hildebrand v. People, 1 Hun, 19; 56 N. Y. 394; Regina v. McKale, 11 Cox’s Cr. C. 32; Regina v. Slowles, 12 id. 269.
    The case of Kibs v. People, 81 Ill. 599, has reference to the proof necessary to sustain an indictment for the larceny of goods under section 74 of the Criminal Code, concerning embezzlement. This indictment has two counts, one for the simple larceny of this coin, and the other for the conversion of it under the embezzlement statute. The same evidence to sustain embezzlement is not absolutely required in this ease, although the evidence would sustain either count.
    The complaint made in arrest of judgment needs little consideration. Many reasons might be given why a reversal of the judgment should not be made upon that ground, among which reasons that might be given, one is, the joinder of counts for simple larceny and for larceny by embezzlement was right, and that a gén'eral verdict of guilty on such joinder was right. Both counts charge larceny, but larceny committed in two different ways.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Plaintiff in error and John Fay were jointly indicted for the crime of larceny. They were jointly tried, and the jury found plaintiff in error guilty, and Fay not guilty. Judgment was entered upon this verdict, after overruling a motion for a new trial, and this writ is prosecuted to reverse that judgment, for several errors alleged which we shall proceed to briefly consider.

First—It is claimed the verdict is not sustained by the evidence. The undisputed facts, as proved on the trial, are:

One Coskey, and a friend accompanying him, entered a saloon, in Joliet, kept by Fay, and procured drinks, and Coskey not having the exact amount of money with which to pay for the drinks, handed Fay a twenty dollar gold coin, United States coinage, for the purpose of making “change.”

Fay, on looking over his money on hand, said he could not “change” it, and thereupon pushed the coin towards plaintiff in error, who was, at the time, standing by the bar, and requested him to go and get the coin “changed.” Plaintiff in error took the coin, left the saloon, and never returned or accounted for the coin.

The case seems, in all its essential features, precisely like Farrell v. The People, 16 Ill. 506. There, one Hennis gave Farrell, who was a hack driver, a five dollar bill to be “ changed, ” in order that Hennis might pay Farrell twenty-five cents. Farrell did not return with the bill or the “change.” This court held he was guilty of larceny.

In Welsh et al. v. The People, 17 Ill. 339, (a case similar in the controlling principle to that in the present ease,) it was said: “Where, as in this case, the alleged larceny is perpetrated by obtaining the possession of the goods by the voluntary act of the owner, under the influence of false pretenses and fraud, when the cases are carefully examined and well understood, there is no real difficulty in deducing the correct rule, by which to determine whether the act was a larceny and felonious, or a mere cheat and swindle. The rule is plainly this: if the owner of the goods alleged to have been stolen, parts with both the possession and the title to the goods to the alleged thief, then neither the taking nor the conversion is felonious. It can but amount to a fraud. It is obtaining goods under false pretenses. If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending that the same thing* shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a larceny. The pointed inquiry in such a case must always arise, did the owner part with the title to the things, and was the legal title vested in the prisoner. ”

Again, in Stinson v. The People, 43 Ill. 397, the same doctrine was reiterated. It was there, among other things, said: “If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a felony, if the goods were obtained with that intent.

This settles the law in this State, but analogous ruling, elsewhere, may be found in the following cases, referred to in argument by the Attorney General: Bailey v. The State, 58 Ala. 414; Commonwealth v. Barry, 124 Mass. 325; State v. Williamson, 1 Houst. Crim. C. 155; State v. Anderson, 25 Minn. 66; People v. Abbott, 53 Cal. 284; Elliott v. Commonwealth, 12 Bush, 176; Macino v. People, 19 N. Y. 127; Commonwealth v. Hurd, 123 Mass. 438; People v. McDonald, 43 N. Y. 61; Hildebrand v. People, 56 id. 394.

No mitigating or extenuating circumstance was given in evidence, and no ground is therefore apparent upon which it can be said the verdict is not sustained by the evidence. The proof on behalf of the prosecution made a case, and that proof is in no manner overcome or impaired by countervailing proof on" behalf of plaintiff in-error.

Second—It is" argued the second count in the indictment is for embezzlement, and it is bad. Suppose it is, the first count is undoubtedly good, and that is sufficient to sustain the general verdict of guilty.' (Townsend v. The People, 3 Scam. 329; Holliday v. The People, 4 Gilm. 113.) But if the counts be both good, and we think they are, inasmuch as it is evidently but the statement of the same felony in different forms, the joinder i is not objectionable. (Lyons et al. v. The People, 68 Ill. 275.) Joinder of embezzlement with larceny is in accordance with the well established practice. 1 Wharton’s Criminal Law, (7th ed.) latter part of sec. 420, and cases referred to in note v.

And it may also be properly here added, the objection that there is a variance between the proof and the second count, (if it were important to consider such a question when it does not also lie to the first count,) is untenable. The averment, that the delivery was to plaintiff in error, is literally sustained. As to that act,- Fay is to be regarded as the agent of Coskey, and the rule applicable is, what the principal does by an agent he does by himself.

Third—Counsel for plaintiff in error contend the property here was not properly laid in the indictment as the property of Coskey. We can not yield our assent to this view of the law. In all the cases before referred to on the question of the character of the offence made out by the unquestioned facts, a contrary doctrine is announced. The property may be alleged in the indictment as the property of the real owner, or of any person having a special property in it as bailee. (2 Russell on Crimes, (7th Am. ed.) 89, *90; 2 Wharton’s Criminal Law, (7th ed.) sec. 1818, et seq.) But clearly no title here passed to plaintiff in error. There was no intentidn he should become owner. He was simply to perform a duty in regard to the property,—“change” it,— that is, convey it to one who would give what, in popular language, is denominated “change,” viz: bills, or gold or silver coins, or some of each, of lesser denominations, in amount of equal value, in exchange for it, and return this “change” to Coskey. Fishback v. Brown, 16 Ill. 74, cited and relied upon by counsel for appellant, does not affect the question. In that case, what was decided was simply that a party “changing” money for an agent, supposing him to be acting as principal, may proceed against either the agent or the principal, when he discovers him, in the event of a right of action growing out of such “changing” of money. The agent was there held liable because the principal was not known and trusted, but there would not have been the slightest objection, had the party so elected, to holding the real principal liable.

It may be, had this coin been alleged to have been the property of Fay, plaintiff in error could not have objected to his title, but this furnishes no objection to the property being alleged in the real owner. In point of fact, no title ever passed to Fay. It was passed to him just as he passed it to plaintiff in error—not to invest title, but to procure it to be changed into (or, to speak more accurately, exchanged for,) bills or coins, or a combination of each, of smaller denominations, in an aggregate amount and value equal to it, and as to that act he was, legally, the agent of Coskey.

We can not perceive that Kibs v. The People, 81 Ill. 599, has any bearing upon the ease. There the indictment was for larceny only, as at common law, while here we have a count for larceny as at common law, and a count for embezzlement, and hence if the proof sustains either, the conviction must stand. But from the authorities cited, and what has been said, it must be evident, we are of opinion, the evidence sustains the count for larceny as at common law.

The affidavits in support of the motion for,a new trial disclose no sufficient ground. Two of them merely show efforts of the plaintiff in'error to get money “changed, ”—what money, is not conclusively shown. But even if it were this for the stealing of which he is convicted, that fact does not even tend to show his innocence. His offence is not in failing to get the money “changed,” but in failing to return it, and in appropriating it to his own use. Doubtless. his own convenience required that it be “changed.” The only other affidavit is that of plaintiff in error that he was intoxicated, and, by reason thereof, oblivious of all he did in regard to this money. Waiving comment upon some inconsistencies and improbabilities in this affidavit, we deem it sufficient to say the court below assigned plaintiff in error counsel for his defence, who, we must presume, was fully competent to the duty assigned him. 'Neither plaintiff in error nor that counsel deemed it advisable to introduce plaintiff in error, or any other witness, to make that proof upon the trial, nor was a continuance asked to obtain evidence in that regard. We can not permit the competency of counsel to defend persons charged with crime to be thus introduced as in issue on motion for a new trial.

Perceiving no error in the record the judgment is affirmed.

Judgpient affirmed.


author: Mr. Justice Mulkey

text:
    Elizabeth Geisen v. Mathias Heiderich.

      Filed at Ottawa November 20,1882.

    1. Limitation—savings in favor of married women. The acts of 1861 and 1874 enlarging the rights and legal capacities of married women, have, by implication, repealed all savings in their favor in existing limitation laws, including the one relating to the prosecution of writs of error.
    2. Same—to writ of error—affirmance of judgment. It seems that where a demurrer is sustained to a replication to a plea of the Statute of Limitations interposed to a writ of error, the judgment or decree to reverse which the writ .of error is brought-will be affirmed.
    3. Constitutional law—repeal of statute by implication. That clause of the constitution -(sec. 13, art. 4,) which provides 'tthat.-no act hereafter passed shall embrace more than one subject,” etc., and “that no law shall be revised and amended by reference to its title only, but the law revised or section amended shall be inserted at length in the new act," was not intended to control the doctrine of repeals by implication.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Moses & Newman, for the plaintiff in error:
    It is contended that the passage of the act of 1874, entitled “An act to revise the law in relation to husband and wife,” has virtually legislated the phrase “feme covert” out of section 85 of the Practice act, providing for writs of error. If this position be sound, it will apply to all other acts yet on the statute books in which the phrase occurs. There are several very serious objections to such a. construction. The repeal of a statute by implication is not favored, and is only allowed when the two acts can not stand together. Sedgwick on Construction of Statutes, 97, 105, 113.

      It is questionable whether repeals by implication can at all exist under section 13, article 4, of the present constitution, which reads, “and no law shall be revised and amended by reference to its title only, but the law revised or section amended shall be inserted at length in the new act.” The act of 1874 was,only intended to govern the relations of husband and wife inter sese, and no words are contained therein showing legislation in reference to married women by themselves.
    But the 85tli section of the Practice act, as to rights acquired thereunder, can not be held as repealed. The exception in favor of Mrs. Geisen in section 86, as between her and the State, was a closed transaction, and it was not in the power of the legislature to deprive her of that right. The Board, etc. v. Chicago, 14 Ill. 334.
    If the words of a statute are merely general, and are not explicitly retrospective in any particular, the courts will not so construe such general words as to give them a retrospective operation to take away, rights of property previously vested, although such words may be comprehensive enough to include the particular case; because, the result being against natural justice, the legislative intent to authorize it must clearly appear. Gilmore v. Shuter, 2 Md. 310; Couch v. Jeffries, 4 Burr. 2461; Dash v. Van Kluk, 7 Johns. 477; Wood v. Oakley, 11, Paige, 403; Matter of Protestant Episcopal School, 58 Barb. 161; Williams v. Johnson, 30 Md. 500; Hooker v. Hooker, 10 S. & M. 599; Scammon v. Com. U. A. Co. 6 Bradw. 551.
    Mr. S. P. Douthabt, and Mr. J. B. Jones, for the defendant in error:
    The effect -of the act of 1861, Revised Statutes, investing married women with the sole control of their separate property, was, as to such property, to place them precisely in the same position, so far as the Statute of Limitations is concerned, as they would occupy if unmarried. Hayward v. Green, 82 Ill. 385; Castner v. Walrod, 83 id. 171; Enos v. Buckley, 94 id. 458.
    But the statute of 1874, Bev. Stat. chap. 68, title “Husband and Wife, ” section 1, is much., broader than the statute of 1861. From the time it went into effect married women have been precisely upon the same footing as femes sole. By it the saving clause as to married women in all statutes of limitation was virtually repealed. It is repugnant to section 86 of the statute of 1862, chapter 110, title “Practice,” and being the last expressed will of the legislature, so much of said section 86 as is repugnant was, by the statute of 1874, repealed. Illinois and Michigan Canal v. City of Chicago, 14 Ill. 304; Dingman v. The People, 51 id. 277; Carmel v. Wabash County, 50 id. 69; Mullen v. The People, 31 id. 444; Potter’s Dwarris on Statutes, 154; Sedgwick on Statutes, 31, 104.
    At the time the decree was rendered in the court below there was no saving clause as to married women, because the statutes of 1861 and 1874 had repealed those saving clauses, and the statute run against plaintiff as though she had been a feme sole.

      ■ While the legislature had not power to abolish a remedy, it clearly had the right to modify it. Providing that writs of error should be sued out within five years after decree rendered, was clearly' within the power of the legislature. Bruce v. Schuyler, 4 Gilm. 221; Conway v. Cable, 37 Ill. 82; Deininger v. McConnell, 41 id. 82.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Mathias Heiderich, the defendant in error, on the 16th of July, 1876, obtained a decree, in the Superior Court of Cook county, against Heinrich Geisen, for $1530, to reverse which Elizabeth Geisen, his widow, on the 21st of December, 1881, sued out of the Appellate Court for the First District a writ of error. The defendant in error appeared, and plead in bar of the writ the limitation of five years, to which plaintiff in error replied, “tha,t at time of entry of decree, on, to-wit, 16th day of June, 1876, plaintiff, was a married woman,.and was then the wife of Heinrich Geisen, and living with him as his wife, and continued to live with him as his wife until the time of his death, on the 21st day of January, A. D. 1878; that she sued out this writ of error within five years next after, ” etc. To this replication the Appellate Court sustained a demurrer, and entered an order affirming the original decree. The plaintiff in error brings the case here, and assigns for error the sustaining of the demurrer to her replication to the plea.of the Statute of Limitations, and this is the only .question in the case.

Notwithstanding the very. foreible and .ingenious argument of counsel for plaintiff in error, we feel constrained, by the logic of the previous decisions of this court upon this subject, to affirm the judgment of the Appellate Court. (Hayward v. Gunn, 82 Ill. 385; Castner v. Walrod, 83 id. 171; Enos v. Buckley, 9 A id. 458.) Under the authority of these cases we hold, the acts of 1861 and 1874, enlarging the rights and legal capacities of married women, by implication repealed all savings in their favor in existing limitation laws, including the one relating to the prosecution of writs of error. We could not reach any other conclusion without repudiating the reasoning and positions'assumed in these eases, which we are not prepared to do. In cases. involving property rights, like the one in hand, there should be no material departure from the rule of stare decisis without some imperative reason for doing so, which does not appear in the present case.

It is urged that to allow a repeal by implication, in a case like this, would be to defeat, by indirection, section 13 of article 4 of the constitution, which provides, “that no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title, and no law shall be revised and amended by reference to its title only, but the law revised or section amended shall be inserted at length in the new act. ” While it is conceded this position is decidedly ingenious, and not without force, we can not believe the framers of the constitution intended by it to limit or control the doctrine of repeals by implication. To give the provision such a construction, it is believed, would lead to much confusion and inconvenience, and deprive the courts of one of the most efficient means of harmonizing and giving effect to hasty and conflicting legislation.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Seth E. Hurlbut, for use, etc. v. Elizabeth Meeker, Ex’x.

      Filed at Ottawa November 20,1882.

    X. Witness—competency—against a deceased, person’s estate. In a suit upon a promissory note executed by a partnership firm, against the estate of one claimed to have been a member of the firm, the other members of the firm, though not sued, are not competent as witnesses against the estate, they having an interest in the event of the suit.
    2. Evidence—cross-examination limited to the matter elicited in cfyief. Where a witness is called to prove a single fact only, as, the handwriting of a person, the. opposite party will not be allowed, under the guise of a cross-examination, to enter upon a general examination of the witness, but the cross-examination will be confined to the examination in chief.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. W. B. Cunningham, for the appellant.
    Mr. Egbert Hervey, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by Samuel E. Hurlbut, for the use of Eben Higgins, against Elizabeth Meeker, executrix of the estate of Joseph Meeicer, deceased, to recover the amount due on a promissory note executed June 23, 1865, by Hurlbut Bros. & Co., payable to the order of S. E. Hurlbut, amount §405.40, due on demand, after date. It was claimed by the plaintiff that Joseph Meeker was a member of the firm of Hurlbut Bros. & Co. at the time the note was executed, and hence his liability as one of the makers of the instrument. On the trial of the cause in the circuit court, before a jury, a judgment was rendered in favor of the defendant. This judgment, on appeal, was affirmed in the Appellate Court.

As to the controverted questions of fact involved on the trial in the circuit court we have no concern. • The affirmance of the judgment of the circuit court by the Appellate Court was a final settlement of these matters in favor of the defendant, which can not be reviewed here.

On the trial of the cause in the circuit court, appellant called J. B. Hurlbut as a witness, and also offered the deposition of D. N. Hurlbut as evidence. The offered evidence having been objected to, on the ground that the two witnesses were both members of the firm of Hurlbut Bros. & Co., and hence interested in the result of the suit, the court sustained the objection, and refused to allow the witness to testify or the deposition to- be read to the jury, and this decision is assigned as error. Under section 2, chapter 51, Bev. Stat. 1874, a party to a civil action, or person directly interested in the event thereof, is not a competent witness where the adverse" party sues or defends as executor, administrator, heir, legatee or devisee of any deceased person, with certain specified exceptions named in the act, in none of which does the present ease fall. Under this statute, we are satisfied that neither J. D. Hurlbut nor D. N. Hurlbut was a competent witness for the plaintiff. They were not made defendants in the action, hut were directly interested in the event of the suit. They were members of th'e firm of Hurlbut Bros. & Co. at the time the note was executed, and were makers of the note in suit, and hence had a direct interest in the result of the pending action. Langley v. Dodsworth, Ex’x. 81 Ill. 86, is a case in point, and the same principle which governed the decision of that case must control here.

It is also said the witness J. B. Hurlbut was called by defendant, and examined at length by her, and plaintiff was deprived of the right to cross-examine the witness by the court. If this statement was correct the decision of the court would clearly be erroneous; but an examination of the record will show that the witness was called by the defendant simply to prove a handwriting, and the court confined the cross-examination, as it should have done, to the examination in chief. When • a witness is called to prove a single fact, the opposite party, under the guise of a cross-examination, can not enter upon a general examination of the witness, but the cross-examination must be confined to the examination in chief. This rule, we apprehend, is well established by the authorities.

Exception was taken to certain instructions given by the court, but as no objections to the instructions have beeii pointed out or relied upon in the argument, we presume the exception has been abandoned.

As no substantial error appears in the record, the judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Sterling F. Waters v. The People of the State of Illinois.

      Filed at Ottawa November. 20,1882.

    1. Criminal raw—duplicity in count of indictment. Where a person by one united, continuous and indivisible act, steals a horse, buggy and harness, a count in an indictment for the larceny of the horse, buggy and harness is not obnoxious to the charge of duplicity. Such act constitutes only one crime, and all the articles stolen are properly named in the, same count. If the different articles had been stolen at different times, it would present a different question.
    2. To constitute' duplicity in an indictment there must be- joined in the .same count different, separate and distinct crimes, committed at different times. When it is but one act, fully completed at the same time, there can be no duplicity, however many or different kinds of articles of property are alleged to be stolen, and it being but a single larceny it is not error to so charge in one count in the indictment.
    3. Larceny—presumption from possession. The possession of property recently stolen is evidence upon which a jury may convict the person having such possession, unless he shows the possession was honest and lawful. When such possession is shown, it devolves on the accused to rebut the presumption of guilt thus raised, by showing his possession to be innocent and rightful.
    Writ of Error to the. Circuit Court of Will county; the Hon. Josiah McBoberts, Judge, presiding.
    Messrs. Haley & O’Donnell, for the plaintiff in error:
    A verdict of guilty as charged in a count of an indictment, means guilty of the larceny of all the .property described in such count. 2 Archbold’s Criminal Pr. and Pl. 373, and note.
    If defendant was not guilty of the larceny of the horse, then this'verdict is unsupported,' without regard to the balance of the goods. Even though guilty of outrageous conduct in obtaining possession of the horse,—even though guilty of a malicious trespass in removing and turning it loose,— still, unless the evidence shows larceny heyond all reasonable doubt, the conviction can not stand. Stuart v. People, 73 Ill. 20; Phelps v. People, 55 id. 334; McCourt v. People, 64 N. Y. 583; Phillips & Strong's case, 2 East, P. C. 662; Smith v. Schultz, 1 Scam. 490; Smith v. Donnelly, 66 Ill. 464; Rex v. Crump, 1 Carr. & Paine, 656.
    The instruction in respect to the possession of stolen property, stating it to be sufficient evidence of guilt unless defendant’s possession is satisfactorily explained by the evidence, is erroneous. The evidence need only rebut the presumption to such an extent as to raise a reasonable doubt of defendant’s guilt. The defendant is not required to establish his innocence to the satisfaction of the jury, when once a prima facie case is made out against him. Comfort v. People, 54 Ill. 404; Hopps v. People, 31 id. 385; Chase v. People, 40 id. 350.
    The punishment for the larceny of a horse is different from that of a huggy and harness, and being so, a count charging both offences is bad for duplicity. Barton v. State, 18 Ohio, 221; Commonwealth v. Symonds, 2 Mass. 162; Reed v. People, 1 Parker’s Cr. R. 481; 1 Archbold’s Criminal Pl. 49, 55, 56.
    Mr. James McCartney, Attorney General, for the People:
    It is not necessary to prove the larceny of all the articles alleged to have been stolen. Archbold’s Criminal Pl. (7th ed.) 161; 3 Chitty’s Criminal Law, 946.
    The exclusive possession of the whole or some part of property recently after the theft, 'is sufficient, when standing alone, to cast upon the party having such possession the burden of explaining how he came by it. 2 Russell on Crimes, 337; Phillips on Evidence, (7th ed.) 168; Knickerbocker v. People, 43 N. Y. 177; State v. Brady, 27 Iowa, 126 ; State v. Creson, 38 Mo. 372; State v. Turner, 65 N. C. 592; State v. Williams, 9 Ired. 140.

      ■ Two distinct crimes may be joined in one count, where one and the'same act • constitutes both crimes. Ruth v. People, 99 Ill. 185; 1 Wharton’s Criminal Law, sec. 931; Oleson v. State, 20 Wis. 58.
    • A count in an indictment charging that the defendant broke and entered- a shop with intent to commit a larceny, and did then and there commit a larceny, is not bad for duplicity. Commonwealth v. Tuck, 20 Pick. 356; Commonwealth v. Hope, 22 id. 1; State v. Ayer, 23 N. H. 301; Davis v. State, 3 Coldw. (Tenn.) 77.
    The Supreme Court of Vermont has passed upon a case identical with the one at bar, and there held that a single count in an indictment "charging the larceny of a horse, wagon and harness, was not bad for duplicity. State v. Cameron, 40 Vt. 555.
    This court has before sustained a count charging the larceny of horses and harness, and no reason appears for overruling the decision. Bennett et al. v. People, 96 Ill. 602.
   Mr. Justice Walker

delivered the opinion of the Court:

Plaintiff in error was indicted in the Will circuit court for larceny. The first count charges him with the larceny of one horse, the property of one Barnes. The second count charges him with the larceny of one horse, one buggy and one harness, the property of the same person. On a trial the jury found plaintiff in error guilty as charged in the second count in the indictment, and fixed his term in the penitentiary at four years. It is urged that the indictment is bad, and the court erred in overruling a motion to quash. Also that the evidence fails to support the verdict, and the instructions for the People are erroneous. For these reasons a reversal is asked.

It is urged that the second count is double, as it charges the stealing of a horse, and a buggy and harness; that horse stealing constitutes a distinct offence, and the stealing of a buggy or a harness another and different offencethat the punishment for horse stealing is confinement in the penitentiary not less than three nor more than twenty years, whilst the punishment for grand larceny of other property is fixed at not less than one year nor more than ten years. It is therefore claimed that the stealing of a horse is, under the statute, a different and distinct crime from the stealing of a buggy or a harness; that they are separate offences, created by different sections of the statute, which impose different degrees of punishment, and for that reason the count charges two separate and distinct crimes, and is bad because of duplicity, and the judgment should have been arrested. In this case there were not two crimes. It was one united, continuous and indivisible act, consisting of the larceny of one horse, one buggy and one harness. It would be unheard of to permit the people to split up such a larceny into two or more separate crimes, and to allow as many different and separate convictions. To be duplicity there must be joined in the same count different, separate and distinct crimes, committed at different times. When it is but one act, fully completed at the same time, there can be no duplicity, however many or different kinds or articles of property are stolen, and it being but a single larceny, it is not error to so charge it in one count in the indictment. Had the horse been stolen at one time, and ’ the buggy and harness at another, then there would be force in the argument, because there would have been two separate and complete crimes. But by no process of reasoning can there be held to be more than one crime in this case. The jury heard the evidence, and it was for them to determine whether the accused took the property, and if so, what was his purpose in taking it,—whether with an honest or felonious intent. They have found it wTas with a felonious purpose, and we are satisfied the evidence required the finding of their verdict. Because the owner found the horse a few hours after he was taken, not fan distant from the place from which he was taken, does not necessarily rebut the presumption raised by the circumstances in evidence that it was stolen. On the contrary, from the evidence there is scarcely a doubt that plaintiff in error, almost immediately after stealing Barnes’ horse, took another horse from a buggy, turned Barnes’ loose, and hitched the other horse to Barnes’ buggy. From this fact the jury could not reasonably find otherwise than he took.Barnes’ horse with a felonious intent.

The possession of property recently stolen is evidence upon which a jury may convict the person having such possession, unless he shows the possession was honest and lawful. When such possession is shown, it devolves on the accused to rebut the presumption of guilt thus raised, by explaining and showing his possession to be innocent and rightful. The abandonment of Barnes’ horse, under the circumstances, does not repel the presumption that he took the horse, or that the taking was felonious. He was seen in possession of the property almost immediately after the taking, which was evidence of the larceny, and he offered no evidence to rebut this presumption of his guilt. In view of the entire evidence, the jury were warranted in finding the verdict they did.

Complaint is made that the court erred in refusing instructions asked by accused. The instruction asked and given for him embraced all of the correct legal propositions contained in the refused instructions. Nor, in view of all of the instructions given, are we able to see that the jury could have been misled. They were fair, and stated the law correctly, and this being so, there is no ground for a reversal, and the judgment of the court below must be affirmed.

Judgment affirmed.


text:
    City of Chicago v. F. B. Sherwood et al.

      Filed at Ottawa November 20, 1882.

    1. Paying contract with a city—construed—who are “representatives of property.” A person entered into a private contract with the owners of a portion of the property fronting on a street in a city, to curb, grade and pave the street fronting their property, and the city council afterwards made a contract with the same person, evidenced by an order of record, for the curbing, grading and paving of the street in front of the other property on the street not embraced in the private contract, in which second contract it was recited, that “whereas, the owners and representatives of three-fourths of the property fronting on” the street had made a private contract for curbing, etc., the street, with such contractor, and in which a contract was ordered to be made with the same person to make a similar improvement of the street in front “of the property not represented in said private contract,” at the same price. It was held, that the words “representatives of property,” in the contract with the city, meant only those who had legal authority to represent the property and bind the owners by their undertaking, and not those who might have assumed to represent such property, and that the contract with the city embraced the improvement of the street in front of all the property, except such as the owners, or those having authority to bind the owners, had contracted to have done, so that the two contracts should embrace the entire work on the street.
    2. In such case the city had the right to levy a special assessment upon any property fronting on the street improved, for the cost thereof, where the owners thereof had not bound themselves to pay the contractor by themselves, or through their authorized agents.
    3. Special assessment—prima facie evidence of its lawfulness. A special assessment of property for the improvement of a street in front of the same, is of Itself at least prima facie evidence that the property is lawfully assessed, and the burden of proof is upon the owner to show that it is not so assessed, and this may be done by showing that the work on the street was done under a private contract with the owner or his duly authorized agent.
    4. Same—letting work to'lowest bidder. Where the order and contract of the city of Chicago, for the curbing, grading and paving of a street, or portion thereof, is adopted by a vote of more than two-thirds of the aldermen elected, the law does not require that the work shall be let to the lowest bidder, in order to justify a special assessment upon the property benefited, lor the cost of the improvement.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Mr. Fbancis Adams, for the appellant:
    The assessment roll embodied in the report of the commissioners, made a prima facie case for the appellant in support of the issues, viz: whether the property was assessed more than it would be benefited by the improvement, or more than its proportionate share of the cost of the improvement. These are the only issues which can be tried on the hearing of an application for confirmation of an assessment. Municipal Incorporation Law, sec. 145; Guild v. City of Chicago, 82 Ill. 483; Fagan v. City of Chicago, 84 id. 230; Bigelow v. City of Chicago, 90 id. 52.
    The report of the commissioners being put in evidence, the burden of proving that something was omitted, or improperly done, was cast on appellees. McAuley v. City of Chicago, 22 Ill. 563.
    The court erred in overruling appellant’s objection to the introduction in evidence of the contract between Shaw and private owners of property. Newton Burke had no right to sign that contract, as he had no authority to represent the property he assumed to represent. The fact that the work was let to Shaw without advertising for bids, constitutes no defence, even though such letting was not authorized by a vote of the council. Section 164 of the statute does not impose any penalty for letting work without advertising for bids, nor does it declare void a contract so let. It is merely directory. City of Chicago v. People ex rel. 56 Ill. 334.
    Messrs. J. P. & T. B. Wilson, for the appellees:
    The work ivas done under a private contract with the owners of property fronting on the street. The city has no power to levy an assessment to pay for -work not performed by the city, and for which it has incurred no liability. Dorothy v. City of Chicago, 53 Ill. 79.
    Ho valid contract was entered into by the city for the doing of the work for which the assessment was levied. Section 50, article 9, of the general Incorporation act, requires such contracts to be let to the lowest bidder, unless such contract is authorized by a vote of two-thirds of all the aldermen. A municipal corporation can only enter into contracts in the mode prescribed by its charter. Dillon on Municipal Corporations, sec. 388; Brady v. Mayor, 20 N. Y. 812; Harlem Gas Co. v. Mayor of New York, 33 id. 309; Macey v. Titcomb, 19 Ind. 135; Bonesteel v. Mayor, 22 N. Y. 162; White v. New Orleans, 15 La. Ann. 667; Zottmann v. San Francisco, 20 Cal. 96; Nast v. St. Paul, 11 Minn. 174.
    An assessment levied for work not done under a valid contract with the city, is illegal. Miller v. Milwaukee, 18 Wis. 92; Wells v. Burnham, 20 id. 112; Hasbrouck v. Milwaukee, 21 id. 217.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This case comes here by appeal from the Appellate Court for the First District. Application was made in the county court of Cook county for judgment of confirmation of a special assessment, and that court sustaining exceptions of appellees to the commissioners’ report, refused to give the judgment sought against the property in question of appellees. This judgment was affirmed by the Appellate Court.

The record shows that on the 20th of May, 1879, a contract was entered into between William E. Shaw, of the first part, and “the owners and representatives of property on West Monroe street and Oakley avenue, ” of the second part, whereby said Shaw covenanted and agreed, “for and in consideration of the payments to him to be made by the parties of the second part, ” as thereinafter set forth, “to fill, curb with curb-stones, grade, and pave with wooden block pavement, in front of the property owned or represented by the parties of the second part on said West Monroe street,. between Eobey street and Oakley avenue, ” according to certain specifications. The work ivas to be done “under the supervision of the department of public works of the city of' Chicago, and to its satisfaction and acceptance. * * * The said second parties, each for himself, agrees to pay said first party the following amounts when said wTork shall be completed in front of the property which they own or represent. ” The contract is signed “William E. Shaw, party of the first part, ” and in the folloAving form by the others, the last being the signature purporting to affect appellees’ property:.

On the 10th of September, 1879, the city council, by a vote of thirty in the affirmative to one in the negative, being a majority of more than three-fourths of all the aldermen elected, adopted the following:

“Whereas, the owners and representatives of three-fourths of the property fronting on West Monroe street, betAveen Oakley avenue and Eobey street, have made a private contract with W. E. Shaw to curb Avith curb-stone, grade, and pave said West Monroe street Avith white pine blocks, the blocks to be six inches long, and to be set oh one inch sound pine boards, with sand under the same for bedding, using lake shore gravel between the blocks, and for top-dressing the same. Therefore be it ordered, that the commissioner of jrablie works grant a permit to said W. E. ShaAV to curb, grade and pave said West Monroe street, between said points, and to enter into a contract with said W. E. Shaw for the city’s portion of said work, at a price not to exceed the price named in said contract. And it' is further ordered, that the commissioner of public - works prepare and report to this council a proper ordinance for making the same kind of' improvement in front of the property not represented in said private contract, between said points on said West Monroe street, and enter into a contract with said W. E. Shaw for curbing, grading and paving the same, at a price not to exceed the price named in said private contract, payable only from the special assessment for said work, when the same shall be collected,—all costs for engineering and inspecting to be paid by the contractor. The said curbing, grading and paving to comply in all particulars with the city ordinances.

The ordinance prepared and adopted pursuant thereto is not set out in the record. But on the 14tli of May, 1880, Shaw executed to, and filed with, the city a bond, in the condition whereof, among other things, is the following: “The condition of the above obligation is such, that whereas the above bounden William E. Shaw has entered into a certain contract with the owners of the property abutting on West Monroe' street, between Robey street and Oakley avenue, in the city of Chicago, bearing date the 29th day of May, A. D. 1877, for curbing, grading and paving the above named street between said points, a copy of which is hereto annexed, for which work, and the cost and expense of the same, the said Shaw relies solely on his said contract, the city of Chicago not to be in any way responsible or liable therefor. ”

In passing upon the questions presented by this record, the first inquiry is, what is meant by the words “representatives of property, ” as used in the contract between Shaw and the city, and in the order of the city council ? Counsel for appellees insist that it nyans only those who assume to represent property, while counsel for appellant contends it means only those who have legal authority to represent the property and bind the owners by their undertaking,—and we have no doubt this is the correct interpretation of the words. The contract with the private parties and the contract with the city were evidently intended to include the entire work, and Shaw expected to be paid by the one or the other for every part of the work. It was not expected Shaw was to do any of the work for nothing, and it was expected, the condemnation of the city would secure payment from all the property not included within the private contract. The owner of the property bound himself by contract, and the only possible object of which we can conceive for contracting with representatives of property is, that they might bind the owners of the.property, for in legal presumption the improvement was for the benefit of the owners, and we can not presume the mere representatives of property had any personal interest in the improvement. The price to be paid was graduated by extent of property,—or, in other words, by interest of owner, —and the burden is one that falls upon the owner. “Representative,” we must therefore assume, means, legally, and when here used was intended to mean, what the term imports,—that is, one having lawful authority to act in behalf of the property and bind the owner in regard thereto—not merely one having no such authority, but assuming to have it.

Passing from this inquiry, we come next to the objection that the contract was not let to the lowest bidder. But when it is determined that the term “representatives of property” means only those who have legal authority to act in behalf of the property, and. bind the owner with reference thereto, it must follow the property here in question was not included in the contract made between Shaw and the private parties, but must have been included within the contract between Shaw and the city. The assessment is itself, at least, prima facie evidence that this property is lawfully assessed, and the burden is upon appellees to show that it is not so assessed. Doubtless this might have been done by showing a contract between, Shaw and the owner of the property, either made in person or through a legal representative; hut this has not been attempted. No-one pretends that Newton Burke had any authority to bind the owners of this property by a contract with Shaw, in regard to paving the street in front of the property. If this property is included in the order of the city council, and in the contract between Shaw and the city, it was not necessary that the work should have been let to the lowest bidder, because they were adopted by a vote of more than two-thirds of all the aldermen elected. Rev. Stat. art. 9, chap. 24, sec. 50.

So, also, in this view, the objection that the object of the assessment, is to pay for work done under private contract, is untenable. This work was not contracted to be done by private contract.

We perceive no sufficient reason why this property should not bear its just proportion of the burden of making this improvement. It has the full benefit of the improvement, and its owners have not, as have their neighbors, contributed thereto.

The judgment of the court below is reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.


author: Mr. Chief Justice Scott

text:
    Livingston Compton et al. v. Margiana M. Randolph et al.

      Filed at Ottawa November 20, 1882.

    Evidence of title—under Burnt Records act. The statute known as the “Burnt ^Records act,” makes an “abstract of title made in the ordinary course of business,” prior to the destruction of the title papers and records, competent evidence to show title to land, but not a copy of a “letter press copy” of such abstract, or the “letter press copy” itself, and it is error, in a proceeding under that statute to establish title, to admit in evidence such letter press copy of an abstract, or a copy thereof.

      Writ of Error to the Circuit Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Chas. H. Wood, and Mr. E. J. Whitehead, for the plaintiffs in error.
    Messrs. Goudy & Chandler, for the defendants in error.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

Margiana M. Randolph and John Randolph Peeples, claiming to be the owners in fee each of an undivided half of the premises in question, filed their petition in the circuit court of Cook county, in which they set. forth the destruction of the public records containing the evidence of their title, and ask to have their title established and confirmed in them, \ under the provisions of the act of 1872, commonly known as the “Burnt Records act. ” A number of persons were named as defendants, some of whom disclaimed having any interest in the property, and others were defaulted, but defendants Livingston Compton and Edward J. Whitehead filed their answers to such petition, in which they deny the alleged ownership of petitioners, as set forth in their petition, and also set forth their own claim to the property involved. Replications were filed to the answers of these defendants, and the cause was submitted for hearing on the petition, answers, replications and proof reported by the master in chancery, and the court found the issues for petitioners, and' established the title to the premises in them. The defendants defending in the circuit court bring the case directly to this court on error.

It will not be necessary, at this time, to remark upon all the questions raised and discussed on the present record. That can be better done when the case shall be finally considered upon its merits. The present judgment must be reversed on account of the error of the trial court in the admission of improper evidence. Petitioners, to sustain. their title, gave in evidence, over the objections of defendants, a copy of a “letter press copy” of an abstract of title made in the ordinary course of business, and also the “letter press copy” itself. This was error. The statute has made an “abstract of title made in the ordinary course of business, ” prior to the destruction of title papers, competent evidence to show title to land, but it has not made a copy of a “letter press copy” of such abstract, or the “letter press copy” itself, competent evidence. The question raised need not now be discussed as a new question. It was definitely settled by the decision of this court in' King v. Worthington, 73 Ill. 161, and it was error in the circuit court not to observe the rule as declared in that case.

The de'cree of the circuit court will be reversed, and the cause remanded. ■

Decree reversed.

Dickey and Sheldon, JJ-.: The record in this ease showing that the abstract of title was destroyed, we are of opinion the letter press copy of it was admissible in evidence.


author: Mr. Justice Walker Mr. Justice Dickey,

text:
    Seymour, Morgan & Allen v. Harley Haines.

      Filed at Ottawa November 20, 1882.

    1. Judgment of justice of the peace—filing transcript thereof in circuit court—of its effect—subsequent suit on justice’s judgment. The filing of a transcript of a judgment recovered before a justice of the peace, in the office of the clerk of the circuit court, does not merge the justice’s judgment into that of the circuit court, so that no recovery can be had upon the justice’s judgment. The filing of such transcript does not operate to extinguish the judgment recovered before the justice, but is only a means provided for its collection from the real estate of the defendant.

      2. After the filing of the transcript by the justice of the peace with the clerk of the circuit court, the justice’s judgment becomes a record upon which execution may issue from the circuit court, and it may be satisfied in the same maimer as a judgment of that court. It then becomes a lien on the defendant’s real estate.'
    3. Same—payment to the clerk is not a satisfaction. The clerk of the circuit court not being a collecting officer at common law or by statute, the payment of a judgment to him is not a satisfaction thereof, and he will have no authority on such payment to enter a satisfaction upon the record, and if he does, it is void.
    4. Same—when clerk may enter satisfaction. Where a sheriff returns an execution satisfied, the writ becomes evidence of the satisfaction of the judgment, upon which the clerk may act and make an entry of satisfaction, and so is a receipt in full given by the plaintiff in the judgment, or by his attorney of record. On entry of satisfaction by the clerk, either on the sheriff’s return of full payment or on the filing of the receipt, of the plaintiff or his attorney, the plaintiff will be required to have the satisfaction set aside by the court, on proper notice, before he can sue on the judgment.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Bock Island county; the Hon. Arthur A. Smith, Judge, presiding.
    This was a suit originally brought before a justice of the peace of Bock Island county, by Seymour, Morgan & Allen, against Harley Haines, and taken by appeal to the circuit court of Bock Island county, where a trial was had before the court, without a jury, resulting in a finding and judgment for the defendant, which, on appeal, was affirmed by the Appellate Court.
    The plaintiffs on the trial below sought to recover on a judgment obtained by them against the defendant before a justice of the peace, and to prove their case offered in evidence the record of that judgment. After this judgment was obtained before the justice, the plaintiffs took a transcript of the same, and filed it in the office of the circuit clerk, who recorded the same in the usual record. To defeat a recovery, the defendant offered in evidence the recorded transcript of this judgment, which was filed and recorded before the plaintiffs commenced their suit, and in addition thereto a memorandum of satisfaction on the niargin of the transcript record, made by the circuit clerk, as follows: “Satisfied by payment, December 24, 1875. Geo. D. Gould, clerk.”
    The defendant then proved that the plaintiffs were nonresidents, and that they had no attorney of record; that on December 24, 1875, he desired to discharge the judgment, which was a lien on his real estate, and paid to the clerk the full amount of the judgment, interest and costs, and thereupon the judgment was satisfied as above stated, and that the money was still in the hands of the clerk.
    Mr. William H. Gest, for the appellants:
    The clerk of the circuit court has no authority, by law, to enter satisfaction of a judgment. Div. 4, sec. 16, chap. 25, Revised Statutes, requires the clerk to keep a judgment and execution docket, in which “a blank column shall be kept, in which may be entered a note of the satisfaction or other disposition of the judgment or, decree, ” and provides, that “when satisfied, by execution or otherwise, or set aside, or enjoined, the clerk shall enter a minute thereof in such column, showing how disposed of, the date, and the book and page where the evidence thereof is to be found.” These entries in the judgment docket are required to be made only for the purpose of an index to persons searching the records of judgments. The clerk is not required to make an order of record satisfying the judgment, but a minute showing where the order of court or other evidence of satisfaction “is to be found, ” giving date, book and page.
    A judgment may be satisfied by an. order of the court, or by execution showing payment, which is a part of the record. The sheriff’s act is, in legal contemplation, the act of the court. But, however satisfied, its satisfaction in fact and the «evidence of it are one thing, and the clerk’s minute is another, which must be based upon some evidence of record.
    The law does not constitute the clerk of the circuit court the agent of judgment creditors, to receive payment of their judgments. Mazyck & Bell v. McEwen, 2 Bailey, 28; Niolan v. Drakeford, id. 28; Durant v. Metcalfe, 2 Metc. (Ky.) 91; Chinn v. Mitchell, id. 92; chap. 25, Rev. Stat. The clerk is not even required to receive a tender, unless by the order of court. Hammer v. Kaufman, 39 Ill. 89.
    Messrs. Sweeney, Jagiison & Walker, for the. appellee:
    After the filing of the -transcript in the office of the clerk of the circuit court, the judgment of the justice of the peace ■was merged, and the proceedings became a judgment of the circuit court, and no suit could be brought on the justice’s judgment. Wayman et al. v. Cochrane, 35 Ill. 132; King et al. v. Hoar, 13 M. & W. 504; Hogg v. Charton, 25 Pa. St. 200; McNutt v. Wilcox & Fame, 3 How. (Miss.) 419; Witherspoon v. Spring, 3 id. 60; Whiting v. Beebe, 7 Eng. 549; Hanna et al. v. Guy, 3 Bush, 91; Freeman on Judgments, 180.
    Appellants can not recover, because the record, as introduced, showed the judgment to be “satisfied by payment, December 24, 1875.” Until this satisfaction is vacated or set aside, no action can be maintained on the judgment. Baxter v. Tucker, 1 Dan. Ch. 353; Pratt v. Jones, 22 Vt. 341; Royce v. Strong, 11 id. 248 ; Hyde v. Taylor, 19 id. 599; Dimick v. Brooks, 21 id. 579; Freeman on Judgments, sec. 432.
    The clerk was authorized to receive the money due, and satisfy the judgment. The plaintiffs being non-residents, having no attorney here, the defendant could, not pay to the justice, or to the sheriff, .as he held no execution. There is no reason apparent why he could not pay the judgment to the clerk at any time, and save the costs of an execution. The cases cited by appellants arose under very different statutes from ours.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellee contends, that by filing the transcript of the judgment of the justice of the peace, rendered in 1873, in the office of the clerk of the circuit court, in 1874, it became a judgment of the circuit court, and by operation of law the original judgment of the justice of the peace was merged in the supposed judgment of the circuit court, and ceased to have any force, and therefore no action can be maintained, or judgment recovered on it. We are unable to assent to this proposition. The statute provides, that when such a transcript shall be filed in the circuit clerk’s office, “the judgment shall thenceforward have all the effect of a judgment of the circuit court, and execution shall issue thereon out of that court, as in other eases.” The 97th section of chapter 79, Rev. Stat. 1874, in terms declares the object of the proceeding is to he “for the purpose of obtaining execution to be levied on real estate.” It is still merely the judgment rendered by the justice of' the peace. The proceeding is purely statutory, and for the purpose of obtaining satisfaction of the judgment remaining on the justice’s docket. A plaintiff makes his judgment a lien upon the real estate of the defendant, by filing a transcript of his judgment in the office of the circuit clerk, and by execution thereon may subject it to sale and satisfaction of his judgment. The filing of the transcript and suing out an execution from the clerk’s office is but a mode of obtaining satisfaction, by rendering defendant’s real estate liable to sale in the same manner as on judgments recovered in the circuit court. If the filing of the transcript operated as a merger and extinguishment of the justice’s judgment, the interest on the justice’s judgment from the time of its rendition till the filing of the transcript should be added, and should become a part of the principal of the judgment in the circuit court, and draw interest. No one has placed such a construction on the act, nor was such its purpose. The judgment remains the same,' but an- additional means of having execution is given by the statute. It becomes a lien on real estate. It becomes a record. Execution may be issued upon it by the clerk, and it may be satisfied in the same manner as a judgment of the circuit court.

Appellee contends that payment to the clerk was a satisfaction of this judgment. To this we can not assent. At common law the clerk is not a collecting officer, nor has he been made such by statutory enactment. The sheriff is, and a judgment may be paid to him when he holds a ft. fa., and payment to the sheriff will operate as a satisfaction, and in such case he returns the writ indorsed satisfied, and the filing of the writ becomes evidence of record of the satisfaction of the judgment; or a judgment may be satisfied by payment to the plaintiff or to his attorney of record, and the clerk, on the presentation to him of the satisfaction piece, or a proper receipt in full, is authorized to enter satisfaction in the judgment docket. But we find no authority at common law to support the position that payment to the clerk operated as satisfaction of the judgment. Nor is anything found in our statute authorizing the clerk of the circuit court to receive money in satisfaction of a judgment. The clerk not being a collecting officer, the payment of the money to him did not operate to satisfy the judgment, and his entry of satisfaction on the judgment docket was unauthorized and void, and his want of power to make the entry may be shown in a collateral proceeding. Had he made the entry on a return of satisfaction by the sheriff, or on a receipt in full from the plaintiff or of his attorney of record, or under the order of either, to avoid the effect of the entry of satisfaction the plaintiff, would no doubt have been required, on proper notice and motion, to have the satisfaction set aside" before he could have sued on the judgment. In that case the entry of satisfaction by the clerk would have been based on evidence the law recognizes as satisfaction by parties authorized to receive the money necessary to satisfaction of the judgment. But here the money was received by the clerk, and the law has not made that satisfaction, or evidence _ of satisfaction, and the clerk had no more right to make the entry than had he been so ordered by a stranger to the judgment. There was no evidence on the record, or in the files of the office, upon which to base the entry. Had there been that, the satisfaction should have been set aside by ¿the court before the judgment would have been opened for any proceedings under it.

The court below, therefore, erred in treating the judgment as satisfied, and in not rendering judgment in favor of the plaintiff below, and the judgment of the Appellate Court must be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Dickey,

dissenting:

I concur in the views expressed in this case, except in so far as it relates to the legal effect of the act of the clerk in entering upon the record satisfaction of this judgment. Appellants insist that the entry upon the record in this ease of the words “satisfied by payment, ” etc., was not authorized under the facts of this case, and that such entry is no obstruction to his recovery, unless the clerk had lawful authority to receive the money from the defendant in satisfaction. I find no authority on this precise question. If the entry of satisfaction by the clerk upon the roll or record becomes part of the record to the same extent as does the return of a sheriff upon an execution, then it is plain that, being part of the record, the entry is conclusive until it is set aside by order of the court, made in a direct proceeding for that purpose, (Freeman on Judgments, see. 432,) and the same can not be attacked collaterally by. showing that the clerk did wrong when he made-the record. The clerk himself, if this entry be (properly considered) a part of the record, has no power to set the same aside. (Hughes v. Streeter, 24 Ill. 647.) I think that this entry should be regarded as a part of the record. I think its legal effect is to satisfy the judgment of record. So long as that satisfaction remains in force, no action can be maintained upon the judgment. If this satisfaction of record was entered improvidently, when it ought not to have been entered, it may be set aside by the circuit court on cause shown, on motion.

Counsel for appellants seem to think that this question is affected by sec. 16, chap. 25, Eev. Stat. 1874, relating to the judgment and execution docket to be kept by the clerk, in which docket it is there said: “A blank column shall be kept, in which may be entered a note of the satisfaction or other disposition of the judgment, and when satisfied, by execution or otherwise, * * * the clerk shall enter a minute thereof in such column, shoving how disposed of, the date, and the book and page where the evidence thereof is to be found. ” This provision is merely directory to the clerk, for the convenience of parties, and entries in such book do not, properly speaking, constitute any part of the roll or record. The rights of parties in nowise depend upon the fidelity of the clerk in keeping this docket. Its language assumes that satisfaction spoken of in that section means satisfaction of record, for it requires a reference to the book and page where the record evidence may be found. This distinction between the docket and the record is sanctioned by the reasoning of Judge Mabcy, in the case of Lownds v. Remser, 7 Wend. 37. The views here, expressed are in harmony with the entire reasoning in that case. The clerk has the power, by law, to enter satisfaction of judgments of record in his office, and in this case he did exercise that power, and until that order be set aside by the order of the court, I think no action can be maintained upon a judgment the satisfaction of which stands entered of record.

It ought to. be observed the entry of satisfaction is not made on the judgment docket, but upon the record, which is equivalent to an entry upon the rolls, under the old English practice. It is not denied that “the clerk, on presentation to him of a satisfaction piece, or a proper receipt in full, ” signed by the plaintiff or his attorney of record, “is authorized to enter satisfaction” of the judgment. If this be so, can such entry of record depend for its validity upon the evidence presented to the clerk to induce him to make the entry? If'it should turn out that such receipt in full was a forgery, would that invalidate the entry of satisfaction, or would it in such case require the order of the court to vacate the entry ?


text:
    James Tobin v. The People of the State of Illinois.

      Filed at Ottawa November 20,1882.

    1. Criminal law—finding party guilty of two offences growing out of a single transaction. A party can not be guilty Of robbery and of having received the same goods obtained by the robbery, knowing them to have been so obtained, where there is but a single transaction involved, and a verdict finding him guilty of the robbery, and of the larceny of the goods so taken, and of receiving them, knowing them to have been stolen or acquired by robbery, is inconsistent. The latter offence imports a subsequent and distinct transaction from the robbery, and involves some other person who had previously obtained the property by robbery.
    2. Receiving- stolen goods—verdict must find their value. There can not be imprisonment in the,penitentiary for the offence of receiving property obtained by robbery, unless the value of the property exceeds fifteen dollars; and to authorize such punishment the verdict of the jury must find the value of the property.
    Writ of Error to the Criminal Court of Cook county; the Hon. John G. Rogers, Judge, presiding.

      Mr. John Gibbons, for the plaintiff in error:
    As to the joinder of offences in one indictment, and compelling an election: Wharton’s Criminal Pl. and Pr. (8th ed.) sec. 294; 1 Bishop’s Criminal Procedure, chap. 30, (3d ed.) ; Harmon v. Commonwealth, 12 S. & R. 69; State v. Johnson, 3 Harrington, 561; Goodhue v. People, 94 Ill. 37; Wharton’s Criminal Law, sec. 1387.
    It can not be contended that robbery or larceny, and receiving stolen goods, are cognate offences,—that they can form part of the same transaction, or that they are such in their nature that the defendant might be guilty of both. People v. Harriden, 1 Parker, 344; 1 Bishop’s Criminal Procedure, secs. 189, 213.
    To constitute robbery, the property, must not only be valuable, but. it must be also taken from the person and the peaceable possession of the owner. Phipoe’s case, 2 Leach, 773; Rex v. Edwards, 6 Car. & P. 521; Moore’s Criminal Law, 54; Wharton’s Criminal Law, sec. 878.
    The verdict .is defective in not finding the Value of the stolen property received. This is necessary where the punishment depends on value of property, etc. Thomas v. State, 5 How. (Miss.) 20; Shines v. State, 42 Miss. 331; State v. Cleaveland, 58 Me. 564; Dick v. State, 3 Ohio St. 89; Colia v. State, 16, Ala. 781; McPherson v. State, 9 Yerg. 279; Kennedy v. People, 39 N. Y. 245; Williams et al. v. People, 44 Ill. 478.
   Mr. Justice Sheldon

delivered the opinion of the Court:

At the May term, 1882, of the Criminal Court of Cook county, an indictment, consisting of three counts, charging, respectively, robbery, larceny, and receiving stolen property; was found against James Tobin, Allen Cummings, and Frank Williams. Upon trial bad, the jury returned the following verdict: “We, the jury, find the defendants James Tobin and Frank Williams guilty, in manner and form as charged in the indictment, and fix their terms of imprisonment at four years each in the penitentiary of this State. ” The court, having overruled a motion for a new trial as to Tobin, sentenced him to four years’ imprisonment in the penitentiary, and this writ of error was brought to reverse the judgment.

As the verdict reads, the jury found the two defendants guilty of each one of the three offences charged in the indictment. But this could not properly have been, under the evidence in the case. It is an inconsistency that where there is but a single transaction involved, as the proof shows to have been here, the same person could have been guilty of both of the offences of robbery and of having received goods obtained by robbery, knowing them to have been so obtained. The objection is not from the' joinder of counts,—they are well enough joined. (Bennett v. People, 96 Ill. 602; Lyons v. People, 68 id. 271; Hiner v. People, 34 id. 297.) The difficulty is brought into the case by the evidence. The three offences charged in the indictment are not comprised in robbery. Larceny might be embraced in it," but it is otherwise with receiving property obtained by robbery. This imports a distinct and subsequent transaction, and involving another person, the receiver receiving the property from some other person who had previously obtained it by robbery. The statute implies this, in providing that in the prosecution for this offence it shall not be necessary to aver or to prove that the person who obtained the property by robbery has been convicted. As, then, the prisoner could not, under the evidence in fin's case, have been guilty of both these offences, of which one did the jury find him guilty ? The proof renders this uncertain.

The prosecuting witness testified that on the night of the 10th day of May, 1882, about half-past ten o’clock, he was, in the street in Chicago, set upon by three men, and robbed of a watch and chain. A pawnbroker in Chicago testified that on the morning of the 11th of May, 1882, Tobin sold him the watch and chain for $4. The defendant Williams testified that he knew nothing of the robbery; that the morning after the robbery was said to have been committed he was eating breakfast in a certain restaurant, at the table with Tobin; that a man, whose name he afterwards learned was Heaney, came to Tobin and asked him if he knew where he could sell his watch and chain; that Tobin inquired of witness if he knew a place, and witness mentioned the pawnbroker’s place; that thereupon Heaney gave the watch and chain to Tobin to sell, and that witness went with Tobin to the pawnbroker’s office, where Tobin sold the watch and chain for $4, and gave the money to Heaney. Tobin testified substantially to the same facts as Williams, and denied all connection with the robbery.

It will thus be seen that there was evidence tending to show that there was committed but merely the offence of receiving goods obtained by robbery, and, as before remarked, the prisoner could not properly have been found guilty of both the offences of robbery and of receiving the property obtained by the robbery, where the proof shows there to have been but a single transaction involved. It is uncertain, then, from the evidence, of which one of these two offences the prisoner was found guilty. It might have been of the last named one, and if so, the-judgment of imprisonment in the penitentiary is not warranted by the verdict, as the value of the property obtained by the robbery, or received, was not found by the verdict. There can not be imprisonment in the penitentiary for the offence of receiving property obtained by robbery, unless the value of the property exceeds $15, and in such .a case, to justify á sentence of imprisonment in the penitentiary, this court has always held that the verdict must find the value of the property, so as to show it to be a case where, under the law, the punishment of imprisonment in the penitentiary is authorized. Highlands. People, 1 Scam. 392; Sawyer v. People, 3 Gilm. 53.

The judgment will be reversed, and the cause remanded,

Judgment reversed.